ACA Offers Guidance for Counselors Working With Unaccompanied Minors

The American Counseling Association Center for Policy, Practice, and Research is responsible for providing access to, and interpretation of, the American Counseling Association Code of Ethics. The following is a Q&A to help counselors working with unaccompanied minor clients who are in federal detention centers.

Q: What guidance would you offer professional counselors working with unaccompanied minor clients who are in federal detention centers?  Should a counselor consult with an attorney? Should a professional counselor consider increasing their professional liability insurance?

A: Professional counselors must consider if an employer policy, separate from the law, could cause a negative impact on an unaccompanied minor client.  If an internal employment policy exists (for example, a professional counselor is required by policy to report past gang affiliation), the counselor should determine what further action is needed to advocate for a policy change which promotes client dignity and welfare (2014 ACA Code of Ethics §D.1.h. & §A.7.b.). In this situation, counselors must consider:

1. Do I agree with my employers’ general policies and procedures?
2. If I disagree, does the policy have a greater likelihood of causing harm to my unaccompanied minor clients?
3. If the policy does have a greater likelihood of causing harm to clients, have I advocated to change the policy and promote counseling values of justice?
4. If my advocacy efforts are still unsuccessful, what other options might be available?

Ethical discernment may require one to voluntarily terminate employment. (2014 ACA Code of Ethics §D.1.g.).

A professional counselor may want to consult with an attorney.  Be aware that unaccompanied minors do not have the same rights and privileges under federal law as citizens and lawful permanent residents.

Counselors may work at agencies or federal detention centers that have employment policies that may be in direct conflict with the ACA Code of Ethics. In this instance, professional counselors may want to consider how those policies impact practice standards and reassess their liability insurance coverage.

Q: In terms of informed consent, who is considered the legal guardian for unaccompanied minors?

A. An unaccompanied minor is a child who has no lawful immigration status in the United States and who has not attained 18 years of age without a parent or legal guardian in the United States (6 U.S.C. § 279(g)(2).  The Office for Refugee Resettlement (ORR) is responsible for the care and custody of unaccompanied minors and is the legal custodian (U.S. Department of Health & Human Services, 2018a).

Q: If there is a conflict between ethical responsibilities and the law, regulations, and/or other governing authorities, what should a professional counselor do?

A: Professional counselors should express their commitment to the 2014 ACA Code of Ethics and take steps to resolve the conflict utilizing an ethical decision-making model. Counselors should consult with clinical and administrative supervisors and/or colleagues.  If the issue cannot be resolved, counselors act in the best interest of the client’s welfare. Counselors may adhere to the requirements of the law, regulations, and/or other governing legal authority (2014 ACA Code of Ethics § I.1.c.).

Q: Does the Privacy Act and the protection of Personal Identifiable Information (PHI) apply to non-U.S. citizens who are also unlawfully permanent residents?

A: No, confidentiality standards regarding PHI do not apply (Executive Order No. 13,768).  Fair Information Practice Principles apply to the PHI of unlawfully permanent residents (Privacy Policy Guidance Memorandum No: 2017-01).

Q: Can professional counselors ensure the confidentiality of all information provided during counseling sessions with unaccompanied minor clients?

A: At this time, no. ORR has a memorandum of agreement with the U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) that articulates the following information being shared through the Unaccompanied Alien Children (UAC) portal: (a) Basic demographic information; (b) Situational Factors; (c) Human Trafficking Indicators; and (d) Known Criminal or behavioral issues, including arrests, criminal charges, convictions, immigration history, gang affiliation or suspected gang affiliation, and violence or behavioral concerns (Memorandum of Agreement among ORR, ICE and CBP Regarding Consultation and Information Sharing in Unaccompanied Alien Children Matters).  Counselors should be aware this information may be and has been used by ICE during immigration proceedings.

Q: Because confidential information related to those four factors are being released, what are the ethical responsibilities of professional counselors?

A: Professional counselors need to inform clients, throughout the counseling process, what information is being released, to whom and for what purposes. Consider there may be no guarantee of confidentiality of counseling notes for these individuals (2014 ACA Code of Ethics § B.2.e.; §B.5.c.).

Q: Could the license or certification of a counselor be impacted as a result of workplace policies and procedures that are not aligned with the 2014 ACA Code of Ethics?

A: It’s possible. For questions regarding your license and what is allowable in terms of the standards of practice, please contact your state licensure board.

This is a complicated matter in which there are many legal and ethical questions. It is important to note that these cases are nuanced and require consultation. The 2014 ACA Code of Ethics requires counselors to take reasonable steps by consulting with other professionals when questions about ethical obligations or professional standards arise. It is encouraged, in cases where there are also legal questions, that professional counselors also consult with attorneys to understand their legal obligations and to help them reconcile between ethical and legal standards when a conflict arises. ACA members seeking assistance with ethical dilemmas may schedule a consultation with the ACA Ethics & Curriculum Development Specialist.

For more information, please email Ethics@counseling.org.

Counseling Definitions

Advocacy – Promotion of the well-being of individuals, groups, and the counseling profession within systems and organizations.  Advocacy seeks to remove barriers and obstacles that inhibit access, growth, and development.

Assent – To demonstrate agreement when a person is otherwise not capable or competent to give formal consent (e.g., informed consent) to a counseling service or plan.

Confidentiality – The professional, ethical, and legal obligation of counselors that they do not disclose client information revealed during counseling without the client’s written consent, except when a client is potentially dangerous to self or others, or there is a legal requirement.

Consultation – A professional relationship that may include, but is not limited to, seeking advice, information, and/or testimony.

Documents – Any written, digital, audio, visual, or artistic recording of the work within the counseling relationship between counselor and client.

Fundamental Principles of Professional Ethical Behavior –

• autonomy – fostering the right to control the direction of one’s life;
• ·nonmaleficence – avoiding actions that cause harm;
• beneficence – working for the good of the individual and society by promoting mental health and well-being;
• justice – treating individuals equitably and fostering fairness and equality;
• fidelity – honoring commitments and keeping promises, including fulfilling one’s responsibilities of trust in professional relationships; and
• ·veracity – dealing truthfully with individuals with whom counselors come into professional contact.

Informed Consent – Referring to clients’ right to know what they are getting into when they engage in counseling. It allows them to make informed decisions about their treatment and the release of confidential information. Informed consent provides clients with information about how the counseling process works and makes them active partners in the relationship. Usually, clients sign a document acknowledging that they have been informed of the activity or experience they are about to participate in and are entering into it voluntarily. 

Minors – Generally, persons under the age of 18 years, unless otherwise designated by statute or regulation. In some jurisdictions, minors may have the right to consent to counseling without consent of the parent or guardian.

Multicultural/Diversity Counseling – Counseling that recognizes diversity and embraces approaches that support the worth, dignity, potential, and uniqueness of individuals within their historical, cultural, economic, political, and psychosocial contexts.

Privacy – The right of an individual to keep oneself and one’s personal information free from unauthorized disclosure.

Privilege – a legal term denoting the protection of confidential information in a legal proceeding (e.g., subpoena, deposition, testimony).

Professional Ethics – Guidelines about behavior and conduct that guide professional practices, such as the ACA Code of Ethics.

Records – all information or documents, in any medium, that the counselor keeps about the client, excluding personal and psychotherapy notes.

Records Custodian – a professional colleague who agrees to serve as the caretaker of client records for another mental health professional.

Social Justice – the promotion of equity for all people and groups for the purpose of ending oppression and injustice affecting clients, students, counselors, families, communities, schools, workplaces, governments, and other social and institutional systems.

Helpful Resources

U.S. Department of Health & Human Services. (2018a). Frequently asked questions regarding unaccompanied alien children. Retrieved from https://www.hhs.gov/programs/social-services/unaccompanied-alien-children/faqs/index.html

U.S. Department of Health & Human Services (2018b). Unaccompanied alien children program fact sheet. Retrieved from https://www.hhs.gov/programs/social-services/unaccompanied-alien-children/program-fact-sheet/index.html

ACA Resources

Multicultural Counseling with Immigrant and Refugee Communities

DISCLAIMER: This information was developed for educational purposes and should not be viewed as legally sufficient when determining your legal responsibilities as a counselor. If you have questions about legal obligations, we would encourage you to contact an attorney to discuss your concerns. Please be advised that although this Q&A does not address all questions or all potential codes that may apply as one or more sections of the 2014 ACA Code of Ethics may apply to your individual circumstances. Adherence to the referenced sections does not imply compliance with other applicable sections of the ACA Code of Ethics nor your state/federal law.