Legal and ethical issues may make psychologists feel anxious, yet often such questions call for a psychologist's best clinical skills.
In the past several columns, I have written about a four-bin analysis as a framework for offering consultations. The four-bin approach consists of differentiating legal, clinical, ethical and risk-management issues, and then integrating these four bins into a coherent response. The key to the differentiation process is recognizing that although closely related, the four bins represent different kinds of questions and so are distinct in nature. The key to the integration process is recognizing that like the four wheels on a car, moving forward depends on the four bins working in a synchronous fashion.
Each of the two steps in the consultation process — differentiation and integration — brings unique challenges. Differentiating legal, clinical, ethical and risk management questions is not always straightforward, especially when working with clients who display significant Axis II symptomatology and with whom the clinical and ethical may seem inextricably intertwined. (See June "Ethically Speaking.") Integrating the four bins can be complex and difficult, for example, when a psychologist's best clinical judgment seems out of step with what the law requires and/or what will minimize the psychologist's exposure to liability. A fruitful exercise can be to explore why the process of differentiation or integration has become stuck at a particular moment and to consider whether some aspect of the situation has been overlooked.
Mandatory reporting illustrates complexities in the integration process. The APA Ethics Office receives many calls from psychologists asking about a duty to report, very often about possible child abuse or neglect and sometimes about a duty to warn or protect an individual whom a client has threatened. A consultation for these calls begins with the legal bin to determine how the laws of the psychologist's jurisdiction apply. Once it has been determined whether the law requires, permits or prohibits a disclosure of the information in question, the ethical bin becomes relevant. Ethical Standard 4.05, Disclosures, identifies three conditions in which it is appropriate for a psychologist to disclose confidential information:
"(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. ..."
The three conditions when disclosure of confidential information is permitted under Standard 4.05 are client consent, when the law mandates disclosure and when the law permits the disclosure for an appropriate reason. A useful teaching approach can be to have students consider themselves to be in the "room of confidentiality." Only the three doors of client consent, legal mandate and legal permission are available to leave the room, so a psychologist must identify which door(s) is/are open before allowing confidential information to leave the room.
An unfortunate artifact of identifying a question as a "legal" or an "ethical" question is that this differentiation sometimes leads psychologists to stop thinking clinically. It is as if clinical thinking ceases to be relevant once an attorney or ethics officer becomes involved. To the contrary, it is often a challenging legal or ethical question that calls for a psychologist's best clinical skills. This point bears emphasis. Although the law may mandate that a psychologist take a particular course of action, the law rarely precludes the psychologist from fulfilling a legal mandate in a clinically appropriate manner, and it is most often in the psychologist's risk management interests to do so. As an example, that a psychologist must file a mandated report and how the psychologist does so are distinct in important ways. The former will get answered in the legal and ethical bins; the latter will be influenced by the law and the ethics code but will unfold largely in the clinical bin. Law and ethics provide the foundation and frame of a house, while the design and decorating are the psychologist's clinical judgment.
A clinical approach to fulfilling a psychologist's legal and ethical responsibilities has not received sufficient attention in our literature or professional meetings. One reason for this professional oversight may be related to our discipline's countertransference: Legal and ethical rules generate anxiety. Anxiety works against nuance and toward disjunctive thinking. Once a legal or ethical question is clarified by an attorney or ethics officer, a psychologist may view the matter as settled and act in the hope it will go away. A different approach is to view clarifying legal and ethical questions as the cue to begin considering the most clinically appropriate manner of proceeding. At this point in the process, a clinical consultation on how to move forward may be the most appropriate next step. An article or conference session titled "Best Clinical Approaches to Fulfilling Mandatory Duties to Report" would be a welcome contribution to this discussion.
When a psychologist is mandated to disclose confidential information, how the disclosure takes place may have profound clinical implications. Using the "room of confidentiality" approach can be helpful clinically because it highlights that the three doors in standard 4.05 — client consent, legal mandate and legal permission — are not mutually exclusive. Although the law may mandate a psychologist to disclose information, the structure of standard 4.05 offers the consent door as well: For good clinical reasons, a psychologist with a legal mandate to disclose may seek to involve the client in the disclosure or at the very least inform the client that a disclosure must be made. Involving the client in the disclosure may be an excellent way to achieve multiple goals simultaneously: fulfill the legal mandate (the legal bin), show respect for the client (the ethical bin), maintain the professional relationship (the clinical bin) and help protect the psychologist against a claim that the psychologist has breached confidentiality (the risk-management bin). This approach is integrative rather than disjunctive.
Another example of integrating a clinical perspective comes from calls to the APA Ethics Office regarding meeting with a family after a client has died. Especially when the death may be a suicide, psychologists become focused — appropriately so — on risk-management considerations. A clinical approach is not in contrast to abiding by legal and ethical constraints regarding a psychologist's continuing duty of confidentiality following a client's death. Rather, a clinical approach asks how a psychologist can be helpful to grieving survivors in a manner that respects the legal and ethical bounds of the interactions. A shift from a reactive, defensive posture toward an approach that incorporates clinical sensitivity and insight into the experience of grief may be consistent with law and ethics and at the same time bring both relief to distressed individuals and considerable risk-management benefits for the psychologist.
The four-bin approach consists of two steps: differentiation and integration. The integration step brings all four perspectives to bear on a psychologist's thinking. The integration step also highlights where psychologists begin and end a consultation: With psychology.
Stephen Behnke, JD, PhD, MDiv, is the director of APA's Ethics Office.
