article banner

Legal and Ethical Issues in Referrals to Mental Health Providers

By Carolyn Stone | October 2020

article main image
Scenario: When students need outside therapy, you always refer them to one particular counselor in the community, who came to your attention when a parent raved about the help he provided her incorrigible teenager. You routinely give out just his contact information for students with similar problems. You have given little thought to the fact that he was not on the district’s vetted list for outside therapists. Are there any legal and ethical issues with the way you make referrals?

In Smith vs. The School Board of Orange County, Florida (1994), the parents of 14-year-old K.W. sued the school district because a school counselor was required to give a list of multiple district-approved resources and allegedly gave only one resource, Ron Markham. Markham ran an outpatient treatment center licensed by the Department of Health and Rehabilitative Services, but his name was not on the school district’s approved list nor was he licensed for in-patient care. K.W’s mother immediately had misgivings when Markham insisted he be given 24-hour custody of her child and sought more information from a school employee, who said if the school counselor thought Markham was “okay” then he must be “okay.” Unknown to K.W.’s mother and apparently to the school counselor, Markham “placed” K.W. in his own home, and for two-and-a-half months sexually abused her.

The Florida Court of Appeals dismissed the complaint, but a dissenting justice issued the opinion that the case should have been allowed to proceed to a jury trial. “The foreseeability of K.W.’s injury – sexual battery by Markham – is a jury issue. In my view, the school had at least a threshold duty to make a referral only to ‘approved’ programs. … Further, K.W.’s mother’s specific inquiry about Markham, after meeting him, should also have triggered a follow-up by the school counselor, which was not done in this case.”

The Smith case underscores these principles:
  • It is best practice to always gives multiple resources and never just one resource.
  • If a district provides a list of resources, it should be basic information that the resource is currently licensed or certified by the state licensing board. Other basic information might be provided such as whether the resource uses a sliding-fee scale so parents can make an informed financial decision.
  • When districts don’t provide a vetted list and school counselors have to develop a list on their own, it should include a disclaimer stressing that the list isn’t exhaustive nor is it an endorsement.
  • Schools need to advise parents to check references and current licensure themselves and to discontinue the relationship if they feel there is something troubling or ineffective about the counseling or counselor.
Arlington Public Schools (Va.) provides a model disclaimer for their vetted list of resources: “This list is of known providers of a particular service. The providers on the list are from a variety of sources. The list is being provided as a courtesy, for information only, and the user should understand that no assurances or guarantees regarding the providers on the list are being made by providing this list. Arlington Public Schools neither endorses, approves, nor recommends any specific provider listed below. This list is not inclusive of all community agencies, services or organizations that provide the particular service, and the omission of an agency, service or organization from this list does not imply disapproval. It is the responsibility of the user of this list to determine whether any of the content is of value to them and whether or not the agency, service or organization meets their specific needs.”

ASCA’s Ethical Standards for School Counselors drive home the point: “School counselors provide a list of resources for outside agencies and resources in their community to student(s) and parents/ guardians when students need or request additional support. School counselors provide multiple referral options or the district’s vetted list and are careful not to indicate an endorsement or preference for one counselor or practice. School counselors encourage parents to interview outside professionals to make a personal decision regarding the best source of assistance for their student.”

You are a school counselor in a rural community with very little community-based counseling and social services support. In addition to being the school counselor at the only K–8 school, you and your wife are two of the few licensed counselors in the community. Can you provide outside counseling to your own students and/or refer them to your wife?

School counselors need to avoid dual relationships such as this. If it’s not possible to do so, you must minimize the risk of harming your student/school counselor relationship. It is not a valid argument to say you must provide the service or the student will not receive help. It is a conflict of interest to serve as your students’ outside counselor or to refer them to your spouse. It is a serious problem when the community offers few options for counseling, but this doesn’t mean a dual relationship is appropriate. According to the ASCA Ethical Standards for School Counselors, section A.6.h. Appropriate Referrals and Advocacy, “Ensure there is not a conflict of interest in providing referral resources. School counselors do not refer or accept a referral to counsel a student from their school if they also work in a private counseling practice.”

Carolyn Stone, Ed.D., is a professor at the University of North Florida and chair of ASCA’s Ethics Committee. She can be reached at