Relevant+Laws

Video 2: **Sign Language Video on Patient Rights during a Sample Visit to a Hospital.**
Videos Submitted by Tina Ferg

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**__DISCUSSION__:**
====A Licensed Professional Counselor (L.P.C.) operates under Ethical Codes of Conduct that have been established by professional organizations to provide counselors with guidelines for ethical conduct. The codes are not law, but they do set the ideal standard for all counselors to reach in order to practice ethically in their field.====

**The American Counseling Association** established the following Codes of Ethics that are relevant to this issue:
====ACA Code A.2.d //Inability to Give Consent//. When counseling minors or persons unable to give voluntary consent, counselors seek the assent of clients to services, and include them in decision making as appropriate. Counselors recognize the need to balance the ethical rights of clients to make choices, their capacity to give consent or assent to receive services, and parental or familial legal rights and responsibilities to protect these clients and make decisions on their behalf. ([]).====

====ACA Code B.1.c. //Respect for Confidentiality.// Counselors do not share confidential information without client consent or without sound legal or ethical justification. ([]).====

====ACA Code B.5.a //Responsibility to Clients//. When counseling minor clients … who lack capacity to give voluntary, informed consent, counselors protect the confidentiality of information received in the counseling relationship as specified by federal and state laws, written policies, and applicable ethical standards. ([]).====

====ACA Code B.2.c. //Court-Ordered Disclosure//. When subpoenaed to release confidential or privileged information with a client’s permission, counselors obtain written, informed consent from the client or take steps to prohibit the disclosure or have it limited as narrowly as possible due to potential harm to the client or counseling relationship. [].====

**The American Mental Health Counselors Association** Code of Ethics (2010) also provides for protection of confidential information, as follows:
====“I.A.2.d. Mental health counselors (or their staff members) do not release information by request unless accompanied by a specific release of information or a valid court order. Mental health counselors make every attempt to release only information necessary to comply with the request or valid court order. Mental health counselors are advised to seek legal advice upon receiving a subpoena in order to respond appropriately.” ([] at p. 2).====

====“I.A.2.k. The primary client owns the rights to confidentiality; however, in the case where primary clients are minors or are adults who have been legally determined to be incompetent, parents and guardians have legal access to client information …” ([] at p. 2).====

**RELEVANT LAWS**

The Official Code of Georgia Annotated establishes laws that all citizens of Georgia are required to uphold. Some of the laws applicable to this particular case include:
====[|O.C.G.A. § 15-11-2 (2011)] defines CHILD as any individual under the age of 17.====

Therefore, Nolan is a child under the laws of the State of Georgia. As such, he is unable to enter into any contract for counseling.
==== O.C.G.A. ß 19-7-1 (2011) states regarding PARENT-CHILD RELATIONSHIPS that in cases where a court awards custody to one parent, parental power and control still rests with the parents. ([])====

====Therefore, regardless of whether Juanita obtains an order for sole custody of Nolan, the father, Russell, will continue to hold parental power and control over Nolan. The only exception would occur if the Court entered an order terminating the parental rights of Russell.====

The Court, in appealing a DeKalb Juvenile Court decision in the case of __In the Interest of H.L.T.__ (1982), entered an order regarding termination of parental rights:
====This Court has made it abundantly clear that a parent’s rights to his or her child will not be terminated ‘without some required showing of parental unfitness, caused either by intentional or unintentional misconduct resulting in abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.’====

==== [|O.C.G.A. § 19-7-2] (2011) provides for PARENTAL OBLIGATIONS to a child.====

([])
====It is the joint and several duty of each parent to provide for the maintenance, protection, and education of his or her child until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs, except as otherwise authorized and ordered pursuant to subsection (e) of [|Code Section 19-6-15] and except to the extent that the duty of the parents is otherwise or further defined by court order.====

====On an appeal to the GEORGIA SUPREME COURT, case law was established to define health services that parents are required to provide to their children. “The statute [O.C.G.A. § 19-7-2 (2011)] is expressive of the public policy that every child should have the right to receive at the hands of parents … such health services as reasonably shall be required to maintain the child in good physical and mental health, and as reasonably shall be required to correct or ameliorate any dysfunction of mind or body.” (__Stone v. Tillis__, 1988).====

====In this case, the Court further defined resultant medical bills to “include those reasonable charges of professionals in generally recognized fields of health care that reasonably are required to maintain this child in good health, and to correct or alleviate any physical or mental dysfunction.” (Stone v. Tillis, 1988).====

====Under the federal Health Insurance Portability and Accountability Act (HIPAA) (1996), confidential information that is transmitted in electronic form is protected from disclosure. For the purpose of the case at issue, this does not apply. However, if we are to assume that it could, disclosure can only be made to the client or his parents, an individual authorized by the client or his parents, or to an individual specified within a valid court order. (45 CFR § 164.502).====

====The federal Family Educational Rights and Privacy Act of 1974 (FERPA) states that parents of minor students (and students age 18 or older or students who are in college) have the right to inspect and review their education records and challenge them, and to have their written authorization obtained before releasing any educational records to third parties. But schools are not required to obtain authorization if the records are being transferred to another school. This law applies to any school that receives federal funding. (34 CFR § 99.33).====

====Finally, when a subpoena is issued for records from licensed professional counselors or school counselors, it is important to recognize these documents as court orders. Consequences for failure to comply exist. Therefore, compliance is required. However, counselors are advised to seek legal advice upon receipt of a subpoena. If as a school counselor, advice should be sought from the school’s formal legal counsel. If in private practice, advice should be sought from your organization’s legal counsel or from a private attorney. It is also important to note that schools are required under FERPA to advise a student’s parents of its intent to release documents in response to a subpoena, except that such notice cannot be made if the subpoena includes a statement that the recipient cannot disclose the subpoena’s existence.====

//Who has legal custody of Nolan? And who is entitled to make decisions for Nolan?//
====Since a custody order is not in place, both Juanita and Russell have custody of Nolan. Therefore, decisions that affect Nolan are to be made by both parents. When made by one, the other is to be notified. It would have been best if Russell had been informed of Nolan’s counseling or even invited to participate – IF it was established that Nolan had not been present when Juanita was assaulted by Russell – and IF Juanita is willing to counsel jointly with Russell.====

//Is Russell entitled to receive both Juanita’s and Nolan’s records?//
====No. Russell is entitled under law only to receive Nolan’s records, as his parent. He has no legal right to see Juanita’s records. The only instance in which Juanita’s records could be released would be if the court issued an order requiring the counselor to turn them over. If that order took the form of a subpoena, the counselor would be required to consult with legal counsel, to resist releasing the confidential documents and only to provide what is essential to the issue that is before the court.====

//Is Susan required to uphold her client’s confidentiality? And who exactly is her client - Juanita or Nolan?//
====Susan is required to uphold Juanita’s confidentiality, as Russell has no standing upon which to make such a demand. But Susan must release Nolan’s records to his father, as he still maintains parental control over his son, regardless of living arrangements or custody. Because it has never been established that an emergent situation occurred in which Nolan needed protection, Susan has no legal right to refuse Russell’s request for his son’s records.====

====As to who is Susan’s client, it is both Nolan and Juanita. It was initially Nolan and we are left to assume that Juanita signed the informed consent to allow him to proceed. But since Juanita also has had counseling sessions, she, too, is a separate client and should have a separate counseling agreement.====

__REFERENCE LIST__ __Web Sites__ American Counseling Association, ACA Code of Ethics, []. American Mental Health Counselors Association, AMHCA Code of Ethics, [].

__Code of Federal Regulations__ 34 CFR § 99.33 – Family Eduational Rights and Privacy Act of 1974 (FERPA), []. 45 CFR § 164.502 - Health Insurance Portability and Accountability Act (HIPAA) (1996), [].

__Federal Case Law__ //In the Interest of H.L.T.//, 164 Ga. App. 517 (298 SE2d 33) (1982), []. //Stone v. Tillis//, 258 Ga. 17365 SE2d 110 (1988), 1988 Ga. LEXIS 123 No. 45029, [|http://scholar.google.com/scholar_case?case=1017380791447567012&hl=en&as _sdt=2&as_vis=1&oi=scholarr].

__Official Code of Georgia Annotated (2011)__ O.C.G.A. § 15-11-2 Definition of Child O.C.G.A. § 19-7-1 Termination of Parental Rights O.C.G.A. § 19-7-2 Parental Obligations

Video 1: **Legal Summary of Case** Video by Alicia Watkins

media type="youtube" key="E4Co-VUhBpo" height="283" width="378" align="center" Interview with Counseling Professional