Ethics Rounds

Q:I am a psychologist who works mainly with adolescents and young adults. This fall I began treating a 20-year-old woman who came to therapy because of difficulties she was experiencing in an intimate relationship. My patient disclosed that when she was 12, an uncle who had come to stay with the family for several weeks sexually molested her on a number of occasions. My patient reports that I am the first person she has told that her uncle "messed with" her and that were anyone in the family to learn what happened a major and perhaps irreparable rift would inevitably result. The uncle has since moved to a distant part of the state and for the last several years my patient has been able to make plans to be away when he visits.

I have attended workshops in ethics and law in which mandatory reporting requirements have been discussed. But I am uncertain--do mandatory reporting laws apply when a patient reports abuse that occurred many years ago and when there is no further contact between the alleged perpetrator and the victim? What is my ethical obligation? Is there a difference between my legal duty and my ethical duty?

A:Ethics means thinking about reasons in terms of values. The values of our profession are set forth most clearly in the Ethical Principles of Psychologists and Code of Conduct (APA, 1992)--our ethics code. As Ethical Standard 5.02 states, "Psychologists have a primary obligation and take reasonable precautions to respect the confidentiality rights of those with whom they work...." At times, the value of confidentiality will conflict with other important values. Such a conflict may arise when a psychologist receives information concerning child abuse--information that may be helpful or necessary to stop the abuse and protect the child.

Society has made a value choice. The value of protecting a child, who may be dependent and vulnerable, and so not able to protect him- or herself, outweighs the value of confidentiality. Thus, confidentiality yields to the value of protecting society's most innocent, vulnerable and dependent members. This value choice is expressed through mandatory reporting laws for child abuse. These laws require that when a psychologist receives information concerning child abuse, the psychologist must disclose the information to a state agency. Mandatory reporting laws are thus the mechanism by which society's value choice is put into practice.

The law often paints with broad brush strokes. As a consequence, the exact contours of a legal mandate are not always entirely clear. Mandatory reporting laws illustrate this feature of law well.

Mandatory reporting laws often state that a psychologist must report when there is "reasonable cause to suspect" that a child is the victim of abuse or neglect. While many laws define what constitutes "abuse" and "neglect," few indicate in their language how far into the past the mandate to report extends. The language of the law and common sense establish certain boundaries: Current physical or sexual abuse falls under the law and requires a report; abuse that occurred 25 years ago at the hands of an individual who's long since passed away does not. Between those boundaries lies a good deal of gray.

Five points may be helpful for practitioners who find themselves in a gray area:

First, review your state's mandatory reporting statute, which is probably available online, to see whether it contains time limits. Minnesota's statute, for example, states that a psychologist must report abuse when the psychologist "knows or has reason to believe a child...has been neglected or physically or sexually abused within the preceding three years." Washington's statute states that the mandate "does not apply to the discovery of abuse or neglect that occurred during childhood if it is discovered after the child has become an adult." The statute adds that the psychologist must nevertheless make a report, regardless of whether the child has become an adult, "if there is reasonable cause to believe other children are or may be at risk of abuse or neglect by the accused." Knowing the language of your state's law can be very helpful in assessing whether you have a duty to report.

Second, many state child protective agencies will provide consultation concerning whether a report is required. It may be possible to call child protective agencies, without providing your name, to present your particular situation, ideally to a supervisor, and ask for an opinion concerning whether the situation mandates a report. The person you speak with should be aware of any agency regulations that are relevant to your question. Be sure to document the call and the name of the individual with whom you speak.

Third, share your anxiety. Pick up the phone and call a trusted colleague or someone with expertise in law and ethics. Many state licensing boards are very helpful in this regard. Many local and state psychological associations provide ethics consultation, as does the APA Office of Ethics. Your malpractice carrier may prove an excellent resource. Although you may feel very alone, you are not. Use the resources available to you and document that you have reached out for professional advice.

Fourth, be mindful that mandatory reporting laws protect psychologists who make reports in good faith. If you are inclined to make a report, your state statute will almost certainly shield you from liability, including a claim for breach of confidentiality, for doing so. The reason has to do with values: When it comes to child abuse, society is more concerned with protecting the innocent and vulnerable than preserving confidentiality. Mandatory reporting laws reflect this value choice by containing protections for psychologists who act in good faith to safeguard a child who may be at risk.

Fifth, don't be harsh on yourself for not knowing the answer. We like the law to draw clear lines, and sometimes it does. Speed limits are a good example. But many times the law speaks less distinctly. When the law does not provide clear guidance, it's important to recognize that the problem lies not with what a psychologist knows or does not know, but rather with how the law is written. The trick is to find resources and have a thoughtful process for determining what to do.

The five points above will help as you decide whether your situation falls under the mandatory reporting law. If yes, the appropriate next step is to file a report. While a client may ob-ject to the disclosure of information, a psychologist can explain that the law leaves no room for discretion in this instance.

What are your ethical obligations?

A question arises: If you are not legally mandated to file a report, what ethical obligations might you have? Ethical Standard 5.05 states that "Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose...." One can think of Ethical Standard 5.05 as having three doors, one of which must be open for the psychologist to disclose otherwise confidential information. These three doors are: the client consent door, the legal mandate door and the legal permission door. Before releasing information gathered in a professional context, the psychologist must ask which of these three doors is open so that the information may pass through.

As we review the vignette, the question we ask is, therefore: Which door is open? The patient appears not to have given permission for a disclosure (and Ethical Standard 5.05 assumes that the client consent door is closed). The psychologist may follow the process described in this article to determine whether the legal mandate door is open. If the mandate door is closed, the psychologist will then attempt to determine whether the legal permission door is open. If the legal permission door is closed as well, we will conclude that Ethical Standard 5.05 will not allow the psychologist to disclose confidential information. There is no door open through which the information may pass.

A hard ethical question arises when only the legal permission door is open and the client does not consent to the disclosure. In this instance, the law says to the psychologist, "Even though your client does not consent to your releasing this information, you may nevertheless do so." This situation will call for both ethical and clinical consultation.

In the case example, the state's child protective agency indicated that a report was not mandated. The state's reporting law, however, nevertheless provides legal permission for the psychologist to make a report. Because the legal permission door is open, the Ethics Code allows a disclosure. This psychologist is thus faced with a client who appears adamant that the psychologist not disclose information and serious concerns about whether she should nonetheless ensure that some authority is aware of the uncle's behavior and propensities.

What should the psychologist do? In the next "Ethics Rounds," appearing in the June Monitor, we ask two experts to weigh in.

Stephen H. Behnke is director of the APA Ethics Office. Robert Kinscherff is director of Juvenile Court Clinic Services for the Massachusetts Trial Court and has faculty appointments through Harvard Medical School, Boston University Law School and the Massachusetts School of Professional Psychology.

"Ethics Rounds" is a bi-monthly feature in which APA's Ethics Office answers questions about the ethical issues psychologists most commonly face. To comment on this article or to pose a question, send an e-mail to Ethics Office.