How confidentiality applies in the treatment of adolescents is a topic to which we return on a regular basis. It merits considering that even after hearing thoughtful and informed discussions of this issue, perhaps in graduate school or in a workshop, we still do not feel entirely settled in knowing how confidentiality applies to work with minors. Asking why this topic requires more of our attention and thought suggests that the reasons for our uncertainty are complex and cannot be fully addressed by a mere recitation of rules. While possibly a source of frustration, this measure of uncertainty is also an invitation to think more deeply about our ethics, our clinical work and the relationship between the two in the context of our clients and patients in their mid and late teenage years, before they reach the age of legal majority.
In pondering why we continually return to the topic of adolescents and confidentiality, it may be helpful for the moment to think of law, ethics and clinical work in terms of a Venn diagram. The overlap is where law, ethics and good clinical care come together. We are always looking for ways to move the circles further together, toward an ideal state of complete consonance. Where the circles do not overlap represents some area of tension, for example between what is good clinical care and what the law demands. The "betwixt and between" quality of adolescence, during which young people's competencies and autonomy are emerging yet are not sufficiently formed for the law to embrace them fully, inevitably gives rise to rough spots where there is an imperfect overlap. Further complicating the matter is the uneven pace of individual development where the capacity to exercise autonomy in a reasonably mature way may be present one moment and, as the parent of any adolescent recognizes, gone the next. The law is a blunt instrument and cannot easily capture with its broad brushstrokes the nuance and variability of this time of life.
In the letter below, A.B. asks whether she should treat an individual 15 or older in the same way as an adult for the purposes of confidentiality. Disclosures to prevent harm to self or others will, of course, apply to both adults and minors. In thinking through A.B.'s question, we could use our Venn diagram as a helpful heuristic device and ask how we would analyze this question from clinical, legal and ethical perspectives. This analysis will show us where possible tensions are, which will then allow us to explore ways of resolving the tensions. Our focus will be on asking where law, ethics and good clinical care do not come together, so we can look for ways to increase the area of overlap and ease the tensions.
From an ethical perspective, we will start with the process of obtaining informed consent: What understanding does everyone involved have about what information will get shared, and with whom? Informed consent sets the parameters of confidentiality for the treatment and any disclosure-or nondisclosure, for that matter-will have roots in the initial discussions about confidentiality. Both because discussions with adolescents about confidentiality are inevitably complex and because they set the context in which the treatment will take place, how confidentiality is discussed upfront merits careful attention. The initial discussions of confidentiality will help set expectations around confidentiality for everyone-the youth, the parent or guardian and the treating psychologist-and are often clinically and diagnostically useful as well.
From a clinical perspective, we will explore what is in this patient's best clinical interest in terms of the disclosure or nondisclosure of information. Our assessment will depend on the circumstances and needs of the particular individual whom we are treating. In many circumstances the most appropriate clinical course will be to maintain confidentiality, as one would with a competent adult. In other cases, a thoughtful and measured disclosure will be most helpful in moving a treatment forward. How we think about these disclosures likely depends to some degree on our theoretical orientation. Many psychologists have strong views about confidentiality in the treatment of adolescents based on their training and experience.
The legal perspective can be complex and may require consultation with a mental health law attorney. A.B. states that the age of consent is 15, yet does not specify consent to what type of treatment and there is considerable variation among state laws regarding confidentiality for individuals who have not attained the age of majority. Some states allow consent to outpatient mental health treatment with no restrictions, while others allow minors to consent to treatments for substance abuse and reproductive health only. In many states minors who have been "emancipated" have an unrestricted ability to consent to treatment, although the conditions that qualify for emancipation may vary, and under federal law federally funded programs whose focus is on substance abuse provide a very high level of confidentiality regardless of age. Certain state laws and federal regulations have provisions that serve to protect the confidentiality of minors when a disclosure-even if requested by a parent or guardian with the legal prerogative to obtain treatment information-would place the minor or the treatment at risk. Because knowing how the law applies may depend on individual circumstances, consultation with an attorney can help clarify the legal parameters governing confidentiality.
Thinking through each of these perspectives is a prelude to assessing the goodness of fit between them, and we can again turn to a Venn diagram. If the area of overlap is sufficient we move forward knowing that we are proceeding in an ethically, legally and clinically sound manner. The more vexing challenges arise when the degree of overlap is small. In such circumstances we are called to explore what alternatives remain available to us as we seek greater convergence between the perspectives, and a consultation will likely prove valuable. The nature of the consultation will depend on which circle we believe most amenable to shifting. As an example, we may have strong clinical reasons for not wanting to disclose confidential information to a person such as a parent or guardian who has the legal prerogative to obtain the information. In this case we may explore the possibility of appealing to a court to keep a record confidential-that is, we seek more overlap by attempting to shift the legal landscape. In the alternative, we may have strong feelings that a disclosure to a third party is warranted, but are bound by confidentiality not to disclose without the consent of a highly recalcitrant client. In this case we may focus on informed consent, and depending on our assessment, eventually tell the client that for clinical reasons we need to revisit and renegotiate informed consent to the treatment. Here we explore how the ethical circle may shift in a helpful way.
Every treatment calls us to be mindful of how ethics, law and our clinical thinking fit with one another. These perspectives often work together comfortably. Treating adolescents raises special challenges that stem in part from the nature of adolescence and in part from the nature of our law. While meeting these challenges successfully and resolving tensions between differing perspectives may require consultation with an attorney or someone versed in professional ethics, excellent clinical skills will always be essential.
Dear Ethics Rounds,
Since being in graduate school I have heard differing opinions on whether a therapist can report information to parents of a teen who is past the age of consent. In our state the age is 15. Some therapists state that adolescents over this age have full confidentiality rights, while other therapists will state that they have limited confidentiality until the age of 18. Still others have said that it is better to argue in court that you broke the confidentiality of a high-risk 15-year-old than to argue why you didn't and the adolescent killed him- or herself, or someone else in a high risk situation. I am unclear if adolescents ages 15 to 18 have full confidentiality as an adult would, or not. Please let me know what your thoughts are on the subject.
Thank you in advance,
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