Privacy and Confidentiality

Ethics

Readings on Ethics for Psychologists

Illinois State Law

Abused and Neglected Child Reporting Act 325 ILCS 5 and A Manual for Mandated Reporters made by the Department of Children and Family Services
Abused and Neglected Long Term Care Facility Residents Reporting Act 210 ILCS 30
AIDS Confidentiality Act 410 ILCS 305/
Mental Health and Developmental Disabilities Code 405 ILCS 5
Mental Health and Developmental Disabilities Confidentiality Act 740 ILCS 110

Ethical Notes

Changes in Standard 4
This changed very little, but notification of privacy risks associated with electronic media are now required. This area is often a target for risk prevention strategies. Problems here are best prevented by:

being clear about limits to confidentiality
storing information in a secure way
knowing applicable laws
understanding and preparing for mandatory reporting

Psychologists gain extremely sensitive and personal information in their work. The idea that it is held in the strictest confidence and is treated as highly sensitive is common, and is really required if clients are to trust us so that we can help them. Thus, it is easy to see why this gets an entire section of the code.

Building on Standard 3, we discuss with clients the limits of confidentiality as a way to inform them of their rights so they can make decisions, and building on Standard 1 we discuss our responsibilities in an effort to clear up any conflicts that would reasonably be seen to arise. This also means we think ahead to possible violations of their confidentiality that could arise, such as with audio or video taping, and respond proactively to protect the information we receive. However, we sometimes must discuss our cases, both for their benefit and ours, as well as for the benefit of future psychologists and future patients.

Illinois Law

on Confidentiality
When You Can Disclose
(15/5. Confidentiality of information) Section 5.
Confidentiality of information. No clinical psychologist shall disclose any information he or she may have acquired from persons consulting him or her in his or her professional capacity, to any persons except only:
(1) in trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide,
(2) in all proceedings the purpose of which is to determine mental competency, or in which a defense of mental incapacity is raised,
(3) in actions, civil or criminal, against the psychologist for malpractice,
(4) with the expressed consent of the client, or in the case of his or her death or disability, or his or her personal representative or other person authorized to sue or of the beneficiary of an insurance policy on his or her life, health or physical condition, or
(5) upon an issue as to the validity of a document as a will of a client.

on Disciplinary Action
(15/15. Disciplinary action – Grounds)
The Department may refuse… any license… or take other disciplinary action… for…
(16) Willfully failing to report an instance of suspected child abuse or neglect as required by the Abused and Neglected Child Reporting Act.
(17) Being named as a perpetrator in an indicated report by the Department of Children and Family Services pursuant to the Abused and Neglected Child Reporting Act, and upon proof by clear and convincing evidence that the licensee has caused a child to be an abused child or neglected child as defined in the Abused and Neglected Child Reporting Act.

Domestic Violations of Confidentiality

Woody, PPRP December 1999 Vol. 30, No. 6, 607-610

On the basis of true examples, Woody discusses ethical pitfalls associated with having a home office to conduct some of your professional work:

unsecured confidential documents in the home could be seen by family members, by guests, or by those providing in-home contracted services for example
an answering machine in the home could store confidential messages that could be overheard by others
“personal” use of the “work” computer, sometimes by other family members, could compromise confidential electronic documents and communication as well as all for malware or virus infections to compromise the computer’s security
a shared fax/scanner/printer machines could also allow for confidential material to be seen by others, including a “GeekSquad” repair person in the event the machine needs servicing
a shared physical mailbox could allow others to see clients’ names and addresses

Woody gives some interesting examples reported by therapists. Minor examples included a child using the office fax machine to send a homework sheet to a classmate who was sick, and seeing the psychologist’s faxes from clients. One more serious one though was of a client who sent her therapist a “love letter” professing her feelings for him; the therapist’s wife read it, thought her husband was having an affair, and contacted the “other woman” to tell her to break it off.

24 Questions (and Answers) About Professional Practice in the Area of Child Abuse

Committee on Professional Practice and Standards, A Committee of the Board of Professional Affairs, APA, PPRP 26(4) 377-385

This very good article starts out with how there are an estimated 2 million reports of child abuse a year, with 1 million being substantiated after follow-up. The problem for psychologists is that basically, you are required to keep confidentiality by ethical codes, required to report the abuse by legal codes, and required to obey the law by ethical codes.

I recommend:

know the law
when in doubt, consult, consult, consult, then document, document, document
be up front whenever possible with the parent about what you are required to do, what will happen most likely, and how this could go well or go sour
- Positives – better therapeutic bond, greater support, relief because “the secret’s out,” protection for the child, safety
- Negatives – weakened therapeutic bond, greater stress due to possibly long-term legal involvement, embarrassment and shame, re-abuse of the child while in foster care, repeated injury to the child by the abuser
don’t overstep your bounds — if you don’t know how to interview children about abuse, don’t try it; if you don’t know how to use anatomical dolls, don’t try it. You are more likely to bias, frighten, or otherwise invalidate the child’s testimony.
be aware of the personal issues you have in this — a desire to protect, a desire to punish, a sense of power, a discomfort with power

Privacy, Privilege, and Confidentiality

Koocher and Kieth-Spiegel discussed Mill and Kant’s moral dilemma. If I remember my Ethical Choice class with Dr. Franke from 1986… the story goes like this. A man is a member of a resistance cell during a revolution. He is caught and arrested by police, who offer to let him go free if he tells the police where the rest of his resistance cell is hiding. He decides to accept this deal, and simply lie about their location. He tells the police the members of his cell are hiding in an abandoned church, and then is released. Unknown to him, however, the members of his resistance cell feared that he might reveal their location, and so they left their hiding place just after he was captured and hid in the abandoned church. The police caught them all, and put them to death.

Question: Did the man act unethically? It depends on whether ethical behavior is determined by actions or intent, and whether we believe ethical acts are absolute or situational.

One way to think about this is case is to focus on the fact that he revealed the location of the resistance members. His intent is unimportant; rather his action led directly to the deaths of his friends, and so we judge him to have acted unethically.
Another way to understand this is to focus on his intention to save his own and his friends’ lives. His actual revelation of the hideout location was accidental; his intention was to save lives, and this intention, being a noble one, means that he acted ethically.
Another way to think about the conflict is to recognize that it was his action and intention to lie to the police. Deception, regardless of his situation and the location of the resistance, is absolutely unethical.
Others would argue this from a fourth perspective. In effect, refusing to speak would have meant his own death, and betraying his friends would have meant their deaths. Lying to the police, while unethical in the abstract, in the situation he faced seemed to him to be the action most likely to produce the least amount of harm. Thus, we weigh the ethical imperatives at conflict in this situation, and the imperative to save lives is more important than the imperative to tell the truth; thus we judge him to have acted ethically in the situation.

Privacy
What does this have to do with privacy?

Privacy is the assumed right we all have that we can keep our personal business personal. It is based on this right that we expect our grocery store is not selling our personal buying habits to companies to allow for targeted advertising.

Privilege is a legal term, indicating a special status granted to a relationship by a court. For example, your attorney can not testify against you because your conversations are privileged. Psychotherapists and their clients have been recognized in some courts as having this (the client holds the privilege, you are bound by it).

Confidentiality is an ethical concept that has no legal standing. We define it as a field, and set the limits on it, given that we have to comply with law as well.

The 1996 Jaffe v. Redmond was the start of privilege for client-therapist communications, and what a client told his therapist was then considered to be private information that a court could not compel the psychologist to reveal. Privilege is, however, by no means guaranteed. It can be waived by a judge, and students and trainees as well as employees are not covered by it. Malpractice and ethical cases typically contain a waiver of privilege, so that you can adequately protect yourself. A client may choose in some cases to waive it as well. However, there may be consequences and the psychologist is obligated to report them to the client.

What does this have to do with ethics? Suppose a client tells you they are thinking of hurting someone. You judge they are dangerous, and report this to the police, breaking confidentiality. The police question the client, and let him/her go. They end therapy after this, and go on two months later to kill someone. Was your behavior ethical? It depends on whether the intent of your actions, or the outcome is considered as the basis for “ethical” behavior.

Duty to Warn

Duty to Warn is a concept that arose from the Tarasoff Case. A psychologist at a University counseling center, Dr. Moore, was seeing a young man, Mr. Poddar, after his break-up with a woman, Ms. Tarasoff. Mr. Poddar was new to the United States, and likely saw his brief relationship with Ms. Tarasoff as very serious, whereas she may not have viewed them as having a relationship at all. He was deeply wounded by her rejection and had become obsessed with her. He had thoughts of harming her, which he shared with his therapist. Dr. Moore was sufficiently concerned that he contacted campus security. They stopped and questioned Mr. Poddar, but decided that he was not a risk and let him go. As a result, they did not notify Ms. Tarasoff of any danger. Mr. Poddar did not return to therapy after this, and Dr. Moore did not notify Ms. Tarasoff of Mr. Poddar’s thoughts either. Mr. Poddar eventually stalked and killed Ms. Tarasoff.

After her death, the family discovered the involvement of campus security, and sued Dr. Moore and the University for failing to warn Ms. Tarasoff of Mr. Poddar’s intentions. In a landmark case, the court decided that the therapist should have done more, and defined a duty to warn Ms. Tarasoff of her ex-boyfriend’s desire to hurt her. The judge viewed the duty to maintain confidentiality ends when harm to others begins. This is not a law, but rather an implied responsibility that many court cases have explored and defined.

Courts have concluded that we do have a duty to warn when:

there is reasonable evidence to assume a risk for harm
there is a specific person at risk
there is a way to contact the specific person

We are not obligated to protect the person ourselves, but only to make our best efforts to warn them of any danger our clients may pose to them.

Ethical debate around this case centers on a number of issues:

Does accepting the duty to warn in and of itself cause harm? What if the counselor had not informed campus security? Would Mr. Poddar have returned to therapy and learned to control his impulses and accept her decision to end the relationship? By breaking confidentiality, do we increase the harm to others by discouraging clients from seeking help?
Do situational factors come into play? The obligation to warn a possible victim requires breaking our ethical obligation to maintain our client’s confidentiality. Which is the greater obligation? As noted above, there may be a cost for choosing one or the other as paramount. How great and specific must the risk be to justify warning someone?
Finally, if there is a duty to warn when harm is likely, then we must as what constitutes harm? It is easy to see an act of physical violence as harmful, but what about unprotected sex with someone who is HIV+ and hides this from his or her partner? The partner is at risk of harm, but Illinois law protects the confidentiality of the HIV+ person. As indicated above, breaking confidentiality of a person’s HIV status could lead to people avoiding testing and help, which would result in fewer HIV+ people knowing their HIV status. Lawmakers in Illinois decided that the greater public good was served by protecting confidentiality to encourage people to seek testing. As a result, psychologists can not break confidentiality to notify a partner of the client’s HIV+ status according to Illinois law.

Child Abuse
Reporting of child abuse is a different matter. While Duty to Warn is not covered by law, reporting of child and elderly abuse (at least in Illinois) is governed by law. This is good in that you are protected from lawsuit if you report abuse that is later not substantiated, so long as the evidence you had seemed reasonable to support abuse and you consulted and documented your actions. However, since Duty to Warn is not the result of any written law, but rather case law, or the interpretation courts have given to state and federal written laws, there is no guarantee of protection for you.

Past Crime
You are not required to disclose past crimes, or intention to perform new ones, unless life threatening. Thus, if your client sells drugs, and tells you they do this, unless they have the intent to harm a specific person, and you have some way to contact that person, you are not obligated to report the crime you believe may happen when they sell drugs.