Ethics Rounds

One of the many privileges of serving in the APA Ethics Office is the opportunity to discuss with psychologists the ethical challenges they face in their day-to-day work. Each year the Ethics Office receives many hundreds of calls requesting consultation on the Ethics Code, and in the majority of calls resolving an ethical dilemma entails discussing how some aspect of confidentiality applies. That confidentiality plays such a central role in the work of the Ethics Office is not surprising.

The importance of confidentiality to the work we do is widely recognized and accepted. In Jaffee v. Redmond (1996), the U.S. Supreme Court stated:

"Effective psychotherapy depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment."

The value of confidentiality, of course, extends broadly across our entire profession and is by no means limited to psychotherapy. By virtue of the special relationship that develops in a psychotherapy, however, confidential information communicated in that setting is more often the subject of struggles between psychologists and outside individuals or entities.

Struggles over confidential information conveyed in a psychotherapeutic setting appear frequently in the media. Often the struggle has arisen from a circumstance that has been hugely painful for all involved and that evolves over time in a legal arena. The Jaffee case, for example, involved a police officer who had shot and killed a man allegedly brandishing a knife; following this incident the officer began a psychotherapy. The man's family then sued the officer in a wrongful death action and demanded notes from the officer's treatment to prove their claim. In a case involving a military academy, a female cadet alleged that she had been sexually assaulted by a male cadet. In the course of the criminal matter, the male cadet invoked a constitutional right as the foundation for demanding that he see treatment notes from a sexual assault counselor with whom the female cadet had met following the incident. In an incident known to many APA members, a well-respected psychologist in California was murdered, and the police wanted to review his case records in a search for possible suspects. While the family supported the prerogative of the police to obtain the records, the community of professional psychologists believed strongly that, in the absence of some evidence pointing to a particular individual, blanket permission to examine all client files was an unwarranted breach of privacy. In each of these cases, there were compelling and conflicting interests in both protecting and obtaining information that had been communicated in a theraputic relationship.

When faced with a request or a demand for information obtained in a confidential relationship, psychologists begin with an ethical principle and an ethical standard:

Principle E: Respect for People's Rights and Dignity Psychologists respect the dignity and worth of all people, and the rights of individuals to privacy, confidentiality, and self-determination

4.01 Maintaining ConfidentialityPsychologists have a primary obligation and take reasonable precautions to protect confidential information

As the Supreme Court stated in Jaffee, an "atmosphere of confidence and trust" is essential to our work. Principle E and Standard 4.01 impress upon psychologists how central confidentiality is to our values and to the ethical standards that put our values into practice.

Standard 4.05 provides specific guidance to psychologists as they determine whether disclosing information is appropriate in a particular situation. Note how the standard, whose two parts identify a process for disclosure with client consent and then without client consent, provides three conditions under which disclosure is appropriate:

4.05 Disclosures

(a) Psychologists may disclose confidential information with the appropriate consent of the organizational client, the individual client/patient, or another legally authorized person on behalf of the client/patient unless prohibited by law.

(b) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtain appropriate professional consultations; (3) protect the client/patient, psychologist, or others from harm; or (4) obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose.

According to Standard 4.05, the three conditions in which psychologists disclose confidential information are first, when a client has consented to the disclosure; second, when the law mandates the disclosure; and third, when law gives the psychologist discretion ("permitted by law") to disclose. While each of these possibilities has its own complexity and nuance, psychologists do well to be mindful that every disclosure consistent with APA's Ethics Code will fall under one of these three broad categories.

Disclosures made pursuant to a mandatory reporting statute are made in the context of a societal determination that some value is more important than confidentiality in a given context. Child abuse reporting statutes, for example, are a result of balancing confidentiality against protecting children; society has determined that confidentiality yields to child protection. Likewise, many states have determined that confidentiality yields to protecting the foreseeable victim of a patient's harm, a balance struck in Tarasoff v. The Regents of the University of California(1976). As important as confidentiality is, society has determined that in certain instances some value other than confidentiality is even more important and so mandates that psychologists disclose information.

Disclosures pursuant to client consent, unlike mandatory disclosures, place the client's self-determination central to the psychologist's ethical analysis. In many instances a disclosure will further the client's wishes and the psychologist therefore discloses the information pursuant to the client's release. As an example, recently a psychologist approached the Ethics Office requesting a consultation regarding what should properly occur in response to a signed release from a former client seeking a security clearance. Providing information relevant to the question was in keeping with the client's wishes, and therefore consistent with the Ethics Code and the client's self-determination. This manner of responding to a client's consent is a way of putting Principle E, Respect for People's Rights and Dignity, into practice, because such a disclosure in response to a competent client's release promotes the client's own values and goals.

The third condition set forth in Standard 4.05 arises when a psychologist has discretion under the law to release information. While disclosures of this nature seem to occur less frequently than disclosures fulfilling mandatory reporting laws or pursuant to a client's release, they are nonetheless important for psychologists to consider in a variety of circumstances. As an example, in states that do not impose upon psychologists a duty to protect or warn the foreseeable victim of a patient's harm, psychologists will often have discretion under the law to disclose information to protect safety, and certain states allow disclosures for the purpose of obtaining clinical consultations even in the absence of a client's consent. Such disclosures are, of course, entirely consistent with Standard 4.05.

Disclosures of information always involve values central to our profession. The Ethics Code sets forth those values and a process for determining whether a given disclosure is appropriate. The process in the Ethics Code both safeguards client self-determination and places psychology in the context of the values and norms of the society in which we practice.


Further Reading

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