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Legal and Ethical Issues in School Counselor

Supervision

Article January 2002

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Barbara J. Herlihy
University of New Orleans
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Legal and Ethical Issues
in School Counselor
Supervision
T odays school counselors deal routinely with compli-
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.
ASCA Professional School Counseling 6:1 October 2002
cated situations in which students have acute coun-
seling 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 aware-
ness of the legal and ethical ramifications of any actions
they may take or fail to take. These mandates are partic-
ularly 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 ero-
sion in their skills and competence (Crutchfield & Bor-
ders, 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 compe-
tently, this can become a legal problem as well as an eth-
ical issue, because a malpractice lawsuit could result.
Supervision can be an effective means of assisting
school counselors to maintain and enhance their compe-
tence. Supervision can provide opportunities for contin-
uing 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
55
types of supervision are generally discussed in the liter-
ature: clinical supervision and administrative supervi-
sion. 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 practition-
ers. The primary purpose of clinical supervision is to
enhance the competence and increase the counseling
skills of the counselor who is being supervised. Unfor-
tunately, however, this is the type of supervision that
school counselors are least likely to receive.
A second and more readily available type is admin-
istrative supervision, which is usually provided by the
building principal or other administrator and is focused
on compliance with school requirements and account-
ability (Crutchfield & Hipps, 1998). Administrative
supervision occurs when a direct-line administrator pro-
vides direction to a counselor who is an employee.
Administrative supervisors usually have direct control
and authority over the counselors they supervise (Rem-
ley & Herlihy, 2001). Administrative supervisors face
somewhat different legal issues than do clinical supervi-
sors, because the purposes of administrative supervi-
sion 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 supervi-
sion of school counselors are examined. Although clini-
cal 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 sup-
port for the efficacy of clinical supervision for school
counselors. Positive results have been reported, includ-
ing enhanced effectiveness and accountability, improved
counseling skills, encouragement of professional devel-
opment, 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 percep-
tion that school counselors do not have the same level
of need for supervision as do clinical mental health
counselors. School administrators, in particular, may
56 ASCA Professional School Counseling 6:1 October 2002
continue to perceive the school counselors role as being
focused primarily on such activities as academic advis-
ing, 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 stu-
dents (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 supervi-
sion of their work (Henderson & Lampe, 1992). Assist-
ing 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 pro-
fessional 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-masters 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-masters 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, confiden-
tiality, relationship boundaries, accountability and liabil-
ity, 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 ade-
quately prepared in supervision methods and tech-
niques (Standard F.1.f.). A major problem in adhering
 P
to this standard in school counseling is opment (Campbell; Goodyear & Nel-
a lack of qualified supervisors. Due to son, 1997).
the shortage of school counselors who oorly defined The cycle of inadequate clinical
have received formal preparation in supervision in school counseling can
supervision, supervision may be pro- counselor roles and be perpetuated when universities place
vided by other mental health profes- interns in schools and these interns
sionals such as licensed community receive their on-site supervision from
unclear professional
mental health counselors, psychologists, school counselors who have had little
or clinical social workers. Although this or no formal education in supervision.
type of cross-discipline supervision is identity contribute These students are unlikely to receive
not uncommon (Campbell & Herlihy, the guidance that they need to maxi-
2002), these supervisors may not have to the lack of mize their performance and strengthen
expertise in play therapy or other their professional development (Dye &
techniques of counseling children and significance placed Borders, 1990). Eventually, these inade-
adolescents. They may not have a full quately supervised students become
understanding of the school counselors on clinical school counseling supervisors.
setting or the developmental needs of
student clients. These differences may supervision. Confidentiality
limit the effectiveness of the Confidentiality issues with school-age
supervision. children present a particular challenge
Similar difficulties can arise in in the process of school counselor
administrative supervision, when it is supervision. The questionable nature
provided by a school principal or another administrator. of the legal rights of children further complicates the
Some administrators may not clearly understand the issue of confidentiality in schools (Remley, 1985). School
role and functions of the school counselor or the ethical administrators, acting according to their own legal and
standards that school counselors are committed to ethical codes, may be less likely than administrators in
honoring. other environments to give permission to videotape or
Some school districts have counseling department audiotape counseling sessions for supervision. Parental
heads, lead counselors, guidance directors, or guidance permission to tape needs to be acquired as well. Never-
consultants. When this is the case, the task of providing theless, clinical supervisors may require counselors who
clinical supervision often falls on their shoulders. In are receiving supervision from them to share with them
most cases, however, lead counselors in school districts information concerning cases. Supervisors, in order to
have not had specialized preparation in counselor do their jobs effectively, may need to listen to audio-
supervision; rather, they hold that position based on tapes of counseling sessions, review case notes or other
their own performance as counselors (Henderson & client records, and learn specific details of cases that
Lampe, 1992). If they supervise school counselors, they may necessitate the revelation of client identity. School
may be practicing outside their scope of competence, counselors recognize the importance of maintaining
which would constitute a violation of ethical standards confidentiality to develop student trust, and thus may
(ACA, 1995, Standard C.2.a.). Supervisors without be reluctant to share information. They may not realize
preparation in clinical supervision are more likely to that, generally, sharing confidential and privileged
concentrate on the administrative and programmatic information with professionals who have a need to
aspects of supervision and to shy away from the clinical know that information for supervision purposes is
aspects of enhancing counseling knowledge and skills acceptable practice and does not destroy legal privilege
(Nelson & Johnson, 1999). (Cleary, 1984).
Even when the clinical supervisor is appropriately From a legal perspective, because school counselors
prepared, the supervisor may not work at the same site generally do not choose their supervisors, they would
as the counselor being supervised. Without direct obser- not likely be held accountable if a supervisor were to
vation of counseling performance, supervision may be disclose information inappropriately to third parties
limited to case consultation which has certain draw- such as administrators or teachers. However, school
backs. The success of case consultation depends on the counselors do have an ethical obligation to address con-
supervisees abilities to observe and conceptualize as cerns they may have about a supervisor who makes an
well as the insightfulness of the supervisor (Bernard & unwarranted disclosure. If the supervisor has direct
Goodyear, 1998). Additionally, self-reporting can be sub- authority over the counselor, this can be difficult
ject to deception (Campbell, 2000). Case consultation, as because the counselor is in a vulnerable position. If pos-
the sole method of supervision, is generally thought to sible, the best course of action is to try to address the
be a less effective means of fostering professional devel- concerns directly with the supervisor involved. If a

ASCA Professional School Counseling 6:1 October 2002 57

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 supervi-
sors 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 prob-
lematic 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 adminis-
trator 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 interac-
tions that would compromise the supervisory relation-
ship. 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 objec-
tive 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 Stan-
dards (ACES, 1990) direct supervisors to address per-
sonal 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 coun-
selors effectiveness by helping the counselor identify
and understand the issues involved, but without allow-
ing the relationship to slide beyond appropriate bound-
aries into a therapeutic relationship (Remley & Herlihy,
58 ASCA Professional School Counseling 6:1 October 2002
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 supervisors 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 coun-
selor/supervisee. The supervisor should also discuss
with the new employee the schools expectations con-
cerning adequate performance. Once the counselors
duties begin, it is the supervisors duty to monitor the
supervisees actions. If the supervisor finds that the
counselor is not performing adequately, proper docu-
mentation and evaluation must be provided. As another
safeguard, supervisors should always acquire profes-
sional liability insurance for protection against any neg-
ligence on the part of the supervisee that may be
beyond the supervisors 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 author-
ity. However, they should follow certain steps to limit
their liability. First, they should present supervisory
activities in the context of education as opposed to con-
trol. When discussing clinical cases, supervisors should
not give directives; rather, they should provide guid-
ance. Supervisors should clarify their role to the super-
visee and others involved (such as the principal or
director of guidance) through discussion and written
documents signed by both parties. When clinical super-
visors are not on site, they should instruct their super-
visees to follow on-site supervisor directives at all times
and to contact them in the event of an emergency. Clini-
cal supervisors should not interfere with an administra-
tive supervisors authority over the counselor (Remley
et al., 2001).
An example of vicarious liability may occur in a sit-
uation in which the counselors administrative supervi-
sor is deferring to the clinical supervisor regarding
decisions that arise in counseling students. If the clinical
supervisor lacks knowledge of school policy, the super-
 W
visor might advise the counselor to will continue to use throughout their
make a decision that violates estab- professional careers.
lished rules for dealing with student hen discussing
issues. For instance, the supervisor Recommendations
might direct the counselor to inform clinical cases, Few school counselors are currently
child protection services directly in an receiving ongoing clinical supervision.
abuse case instead of first informing the Supervision can be an effective means
supervisors
principal. If this violates school policy, of increasing their clinical competence,
the counselor might be reprimanded or reducing the stresses inherent in their
even fired by the administrator. should not demanding roles, and helping them
respond to the challenging ethical and
Evaluation give directives; legal issues they encounter. We con-
Fair evaluation deals with supervisees clude with the following recommenda-
rights, specifically their right to be pro- rather, they should tions for those who provide
tected from administrative decisions administrative and clinical supervision
that affect them unfairly (Remley & provide guidance. to school counselors:
Herlihy, 2001). An extreme example of
inappropriate evaluation would occur 1. If you are providing clinical supervi-
when a school counselor is dismissed sion and have not completed specific
from a job without receiving feedback course work (as a university-based, for-
in advance concerning inadequate per- credit course or as continuing educa-
formance. Administrative supervisors tion), make it a high priority to do so.
can limit their legal liability in this area by consistently Thorough preparation will not only help to avoid ethi-
providing the counselors they supervise with feedback cal and legal pitfalls, but will help you to become a
and by providing opportunities for the counselors to more effective supervisor.
correct mistakes (Remley & Herlihy). A written job 2. To increase the pool of available school counselor
description is an excellent format to specify what is supervisors, consider instituting a peer supervision pro-
required of the counselor who is being supervised. gram in your school district. Agnew et al. (2000), Ben-
When the administrative supervisor notes a deficiency shoff and Paisley (1996), and Borders (1991) provided
in the counselors performance, the supervisor should some excellent information on how to establish such a
describe specifically what constituted the negative per- program.
formance and what behaviors will lead to improvement 3. Consider collaborating with counselor educators at
(Bernard & Goodyear, 1998). Although administrative nearby universities, if possible, to provide professional
supervisors may feel comfortable evaluating whether development in supervision to practicing school coun-
their counselors are complying with school policies and selors. Combining the perspectives of counselor educa-
procedures, if the supervisors are not counselors them- tors who received rigorous preparation in supervision
selves, they may not have sufficient knowledge of coun- as part of their doctoral studies with counselors who
seling to evaluate the employees clinical performance. provide supervision and who understand the practical
In the absence of any clinical supervision, school coun- realities of the school counselor role and functions
selors may not be receiving any feedback or assistance would maximize the efficaciousness of such profes-
in improving their clinical skills and any deficiencies in sional development.
clinical performance may go undetected. 4. Work with school administrators to develop school
Evaluation is an integral component of clinical policies that support school counselors in receiving
supervision as well. Counselors who serve as supervi- supervision and consultation. Administrative support
sors are often uncomfortable with their evaluative roles could include setting aside time during working hours
because they were trained first in the more nonjudg- for supervision, allowing counselors some flexible
mental role of counselor (Bernard & Goodyear, 1998). release time to travel to another school and meet with
Nonetheless, they cannot allow their discomfort to inter- other counselors for supervision, and hosting peer
fere with their obligation to provide their supervisees supervision sessions at ones school (Crutchfield &
with ongoing formative evaluation. Clinical supervisors Hipps, 1998).
should thoroughly discuss the evaluation process and 5. Periodically review the codes of ethics of relevant
procedures with their supervisees at the outset of the professional organizations to ensure that you are aware
supervisory relationship, to avoid later misunderstand- of any changes in ethical standards. Participate in semi-
ings. The ultimate goal of clinical supervision is to help nars and workshops that provide updates on law
supervisees develop skills in self-evaluation that they related to counseling and supervision.

ASCA Professional School Counseling 6:1 October 2002 59

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 per-
formance 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 coun-
selors. 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.
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