Ethics Rounds

The APA Ethics Office has five primary roles: to adjudicate ethics complaints; to provide ethics education; to assist the association in developing policies related to the Ethics Code; to promote the presence of, and interest in, ethics throughout the APA membership and governance process; and to offer consultation on ethics-related questions. Ethics consultation is one of the most interesting aspects of our work because of the wide range of ethical dilemmas that psychologists encounter. Given that APA has 56 divisions that cover the breadth of human and nonhuman animal experience, it is not surprising that on any given day the Ethics Office will receive calls as widely divergent as a psychologist asking whether a mandatory-reporting law applies to a research study, a psychologist inquiring whether it is ethical to adopt a child she encountered in a clinical setting, and a psychologist wondering whether it is permissible under the Ethics Code to videotape portions of a therapy session for a reality TV show.

Themes emerge from the hundreds of calls the Ethics Office receives each year. A theme that has become central to our work in providing consultation is identifying and distinguishing the ethical, legal and clinical aspects of the question posed. While making these distinctions can sometimes be a bit frustrating to the caller because further consultation is necessary, clarifying what questions need to be asked can also offer a structured path for resolving the dilemma with which the psychologist is struggling.

Two kinds of calls the Ethics Office frequently receives that illustrate this theme involve mandatory child-abuse reporting and Tarasoff-the duty to protect.

On a regular basis, the Ethics Office receives calls from members wanting to know whether a particular situation triggers a mandatory child- abuse report. Our practice is to hear the facts of the case and then attempt to elicit any additional relevant information the caller may not have mentioned. Sometimes this process will make clear whether a report is necessary, but often not. At this point in the process it can be helpful to clarify that the question posed-whether the legal threshold for a duty to report has been reached-is a legal rather than an ethical question, the answer to which will likely depend on the relevant jurisdiction's law. The reason the answer to this question rests initially with the law rather than with our ethics is because Ethical Standard 4.05(b) makes clear that psychologists must disclose information in response to a legal mandate:

          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....

In some states, the status of being a psychologist triggers the duty to report suspected child abuse. In others the duty is triggered when one is acting in one's professional role as a psychologist. In the latter jurisdictions, seeing evidence of child abuse on a weekend family picnic would likely not trigger the legal duty to report; in the former jurisdictions, it may well.

Because the answer to the caller's question will rest initially with a legal rather than an ethical determination, the Ethics Office will refer the psychologist to someone with expertise in the mental health laws of that jurisdiction. In matters that are especially murky-for example, abuse that took place in the distant past by a perpetrator who no longer has access to minors-the Ethics Office may also suggest that the psychologist contact the jurisdiction's child protective services. Many such offices take anonymous calls and will render an opinion-which the psychologist can then document-regarding whether a report is required. The important point from the perspective of the Ethics Office is that Ethical Standard 4.05 establishes a process whereby the resolution to the psychologist's ethical dilemma follows from an assessment of the law, based upon the clinical situation.

A second kind of call that the Ethics Office receives illustrating the value of distinguishing between ethical, legal and clinical issues involves the duty to protect, sometimes referred to in shorthand as a Tarasoff question in reference to the 1976 legal case from the Supreme Court of California. Usually a psychologist will provide details of a client who has threatened to harm a "third party"-an individual outside the treatment relationship-and then asks whether there is a duty to take some action, such as to disclose the threat to the threatened individual or to another person or organization such as the police. The Ethics Office will again refer to Ethical Standard 4.05 as the ethical context for answering the legal and clinical questions. Standard 4.05(b) is usually most relevant for these questions:

          4.05 Disclosures

(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....

Jurisdictions generally fall into two broad categories in regard to their duty-to-protect laws: those that have laws creating a duty to disclose information and those that have laws permitting the disclosure of information. The answer to the ethical question will therefore rest upon a clinical assessment to determine the likelihood that there is an actual threat of harm and a legal determination regarding how the jurisdiction's law applies to the clinical situation. The clinical assessment will thus provide the foundation for the legal and the ethical response. The psychologist will use the clinical assessment to determine the likelihood that a genuine threat of harm is present. Based upon this clinical assessment, the psychologist will determine whether the jurisdiction's law requires or permits the psychologist to disclose information. If the psychologist determines that there is a legal mandate or legal permission to disclose information in response to a threat, the psychologist will apply Ethical Standard 4.05. In this instance, as in the mandatory reporting situation, the ethical follows upon the legal which, in turn, follows upon the clinical.

Calls to the APA Ethics Office involving mandatory child-abuse reporting and the duty to protect illustrate the close relationship between ethics, law and our clinical work. One aspect of an ethics consultation is to explore how these perspectives fit together. An overarching message is that legal and ethical dilemmas never arise in a vacuum. They arise in the course of our work as psychologists. Our background, training and experience as psychologists are therefore always central in formulating our ethical response.

Further Reading

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Previous "Ethics Rounds" columns can be found at APA Ethics Office, in the "From the Director" section.