When to Break Confidentiality

Although not yet complete, there a many international organizations working hard at developing a document titled Universal Declaration of Ethical Principles for Psychologists. It has the potential to offer an ethical foundation from which psychologists can construct the conditions under which disclosure of previously held confidential information can occur when clients mat be dangerous to third parties. Until this document is complete, psychologist have to resort to their professional associations’ rules such as the American Psychological Associations Codes of Ethics published most recently in 2002 as well as their governments’ licensing laws such as the California Board of Psychology’s laws and regulations.

Although these codes and laws vary internationally as well as from state to state, the majority of these procedural doctrines are structured by two types of guidelines: unenforceable principles and enforceable standards (International). Some of these standards are quite straight forward such as American Psychiatric Association Ethic Code 10.05 – “psychologists do not engage in sexual intimacies with current therapy clients/patients” (DSM-IV-TR, 2000, p. ) However, on the other hand, other standards, confidentiality for example, can be quite broad in application and subject to different interpretation. Two of the most misunderstood and problematic standards outlined in the APA’s code of ethics are patients’ confidentiality and the professionals’ duty to warn third parties of imminent danger. While there have been hundreds, if not thousands, of papers discussing this highly charged topic, the following will be a brief discussion about some relevant issues surrounding when a clinician should and should not break confidentiality and will conclude with some recommendations to help mitigate the difficult situation this topic puts clinicians in.

What are we talking about here? A clinician can be presented with information that presents an ethical dilemma pertaining to the APA Ethical Code 4.02 that states, Which means, of course, that clinicians must not disclose any information about a client to anyone who has not been explicitly identified by the client. Under normal situations this standard of confidentiality is fairly straightforward though it can become quite confusing when the patient discloses information that can lead to harming a third party. Two fundamental guiding principles discussed in the APA ethics code are beneficence and malfeasance and it is within these two principles that a clinician can discern when it is appropriate to maintain confidentiality and when enough information has presented itself to justify breaking it.

The guiding principles of beneficence and maleficence are always present with every client and at every stage in therapy. Beneficence, the intent to do good, is normally discussed as the guiding principle involved in maintaining confidentiality because it is this confidentiality that the therapeutic alliance is based on. Maleficence, the intent to prevent harm, is the normally discussed as the guiding principle in the duty to warn principle because the driving force behind breaking confidentiality is to prevent harm to others that the client is capable or or intending to do. Where many clinicians get tangled is that they fail to understand that these guiding principles are omnipresent and continuously readjusting in light of new facts that are brought to therapy. One way to think about these opposing forces is that as long as the good outweighs the bad, then the therapist is justified in maintaining confidentiality. However, if but for only one tenth of a second the facts support the welfare of a third party over the welfare of the client, than the guiding principle of malfeasance becomes the appropriate guiding principle until the the third party has reached a degree of apparent safety.

Why is this discussion important? There are a number of reasons that clinicians should revisit the literature surrounding this topic. Every since the Tarasoff ruling that first stated psychologists had a duty to the public to break confidentiality when a threat of imminent violence presented itself, academics, lawyers, students, and clinicians have all weighed in on whether or not this duty should be imposed and under what specific circumstances. For example, not all jurisdictions have incorporated the Tarasoff ruling and therefore a clinician should be aware that the rules vary in different professional venues. In addition, what acts define what is dangerous enough to constitute breaking confidentiality have become alarmingly more broad and include domestic violence, stalking, and non suicidal self harm (practices). Furthermore, a recent poll of clinical psychologists showed that over 70% illustrated incorrect understandings of their ethical and legal duty to protect. If these cases are not handled correctly, it is very likely that wrong decisions will lead to innocent people being harmed when they should have been warned, and adverse therapeutic effects of breaking confidentiality when there wasn’t sufficient evidence to support the decision. If clinicians do not make attempts to educate themselves with the constantly changing ethical and legal landscape, the profession may suffer as a whole when potential clients are afraid to disclose personal information due to fear of no confidentiality and clinicians will be held accountable in civil courts for acting outside of their professional ethical obligations.

Much of the literature surrounding this topic is presented in hypothetical situations due primarily to the wide spread theoretical implications. In an effort to pay respect to this previous work and with the understanding that many of the readers of this paper will be accustomed to hypothetical vignettes, I have chosen to fashion a fictional character to use as a case study for the following situational discourse. Jerry is a married father of two children, a 12 year old boy and a 14 year of girl. Fortunately for this paper, and unfortunately for Jerry, he has lived a fairly complicated life and has recently been diagnosed with a number of different medical conditions and psychic disorders. Due to the large amount of stress these sudden events are causing Jerry, he has decided to being therapy with a local licensed clinical psychologist. It may also be that this clinical psychologist is a new licensee and has taken Jerry as his first official client.

Okay, Jerry comes in on Monday for his first session (he has already given his informed consent) and after a few minutes states that he has recently been diagnosed with HIV but that his wife and kids do not know and he doesn’t plan on telling them nor will he allow the therapist to inform them. He says that he is so angry that he could kill someone and the fact that he has to leave the therapy session to attend to his disabled mother aggravates him even more. After another 30 minutes of ranting and raving Jerry stands up and insists that he leave immediately. He has to bring his mother dinner, no one else every does, and since he didn’t make it the night before, he knows he must go tonight. He reminds the therapist that everything he just said was confidential and storms out of the office.

After an hour of deliberating the therapist picks up the phone and calls Jerry’s wife and informs her that he has a duty to protect third parties by breaking client confidentiality and explains that Jerry has just admitted to being HIV positive. Next he phones the local police station and files a report that his client, Jerry, has recently disclosed an intent to do bodily harm to another and its the therapist job to report such threats of violence to the local authorities. Finally he picks up the phone to call Adult Protective Services but stops and hangs up before the call is answered. He thinks that Jerry’s mother may be dependent on Jerry for food and that Jerry may be failing to bring her adequate nourishment on a regular basis but that reporting Elderly Abuse is major event and although he is mandated by law to report such abuse if he suspects it, it would be unfair to Jerry not to investigate the situation further. He decides that he will drive over to Jerry’s mother’s house immediately to investigate the situation before coming to a conclusion.

Has the therapist acted appropriately? Let’s see …

Did the therapist act appropriately when he informed Jerry’s wife that Jerry had been infected with HIV? No. On one hand it can be argued that Jerry’s wife is in danger of contracting a life threatening disease from her husband should they engage in unprotected sex. This line of reasoning would certainly lift the duty of practicing maleficence towards Jerry’s wife over the duty of practicing beneficence towards Jerry’s confidentiality and continued therapeutic alliance. On the other hand, it can be argued that not enough information had been obtained in order to justify the breach in confidentiality. For example, we don’t know if Jerry’s wife is already infected, if the two of them already practice safe sex, or if they even still engage in sexual relations at all. More importantly, under this type of situation where the therapist is hearing the diagnosis from the patient, the therapist must rely on official medical diagnosis and medical professionals must be consulted.

Did the therapist act appropriately when he called in the threat to the police? No.

Jerry disclosed that he wanted to kill someone but he didn’t say who he wanted to kill. Thus, in this case, who is benefiting from the therapists’ guiding principle of maleficence? If the answer is the entire public realm, than one must weigh how much each individual person in the local community would benefit over how much Jerry would suffer due to the therapists’ failure to maintain the guiding principle of beneficence. Furthermore, the therapist made a gross error in assuming that he could properly assess Jerry’s violence by using his own therapeutic experience and judgment. A more thorough and fair approach would have been to use any number of different empirically proven test measures that show whether or not a person has violent tendencies and to what degree of seriousness. The lack of specificity in regards to Jerry’s threat negates any action on the part of the therapist to justify breaking confidentiality.

Finally, did the therapist act appropriately in postponing the mandate to report elderly abuse?No. “Reporting laws supersede assurances of professional confidentiality (mandate).” And this includes child abuse, elderly abuse, and disabled persons. As with the other two ethical dilemmas described above, breaking confidentiality due to a heightened risk with a life threatening communicable disease and due to the possibility of imminent harm, therapists are put into a position to choose the lesser of two ethical evils. However, with mandated reporting, this dilemma does not exist because the law says that mandated reporters file the report without bias. Therapists, and other mandated reporters, can find themselves in a self imposed difficult situation where they feel an ethical obligation to investigate the facts before making a report. The fact that the therapist delayed the inevitable call only slightly by choosing to investigate the situation immediately means that the therapist broke the law and may be prosecuted and/or disciplined by the licensing board for this action. However, just because the law says mandated reporters should always report suspected cases immediately and without further investigation does not mean that all professionals do. Not surprisingly, over forty percent of practicing psychologist believed that reporting suspected child abuse leads to negative family therapeutic consequences (Mandate). In addition, more than 80% of polled psychologists admitted to seeking consultation with colleagues prior to issuing reports of child abuse indicating that a very high percentage of mandated reporters are at odds with the current laws and regulations surrounding mandated reporting.

If the above answers shocked you, don’t be alarmed. Many of the situations that a clinical psychologist finds themselves in are counter-intuitive. The important thing to remember is that each case is different then next and the fundamental question a psychologist is attempting to answer is not whether or not there is a duty to protect the public but rather at what point does the situation force the therapist to act out of maleficence rather than beneficence. For example, in regards to the HIV and threat of violence examples provided above, the therapist always begins with the guiding principle of beneficence since confidentiality is the foundation for the therapeutic alliance and to do good onto your client means to protect the assumption the client has about confidentiality. However, when the HIV and threat of violence become more specific, that is to say that the patient specifies their intent to infect a known person or their threat of violence becomes centered on a known and accessible person, then the duty to do no harm onto these other people begins to outweigh the duty to do good onto the patient. It is here where the therapist must begin to consider breaking confidentiality and do so by following the appropriate protocols and procedures.

Not all clinicians are trained equally to handle these complicated and delicate situations. According to study performed on many different internships and academic programs, one one program could boast teaching its students to use one of the many appropriate violence assessment tools (clinical). Some believe that risk assessment is so crucial that is should be part of everyday therapeutic practice (assessment). …

In addition to using these violence risk assessment tools, the therapist must utilize all their available sources. For example, during the hour before making the calls to Jerry’s wife, the police, and the decision to postpone calling APS, the therapists had instead placed a call to an experienced colleague, attorney, or ethics committee representative, then he would have likely made better decisions and yet appropriately accomplished the same goals he intended. One should think of these preparatory and cautionary acts as steps towards making a well informed ethical decision.

Keep in mind that just because clinical psychologists are technically governed by the APA’s ethical code that clinicians can look to other professions ethic codes in order to better understand the gaps in the APA ethical code. For example, nowhere does the APA ethical code speak about a dilemma between confidentiality and duty to protect in regards to communicable diseases (duty to protect). But the American Counseling Association’s ethical code does include a statute that clearly states, “when clients disclose the have a disease … both communicable and life threatening, counselors may be justified in disclosing information to identifiable third parties, …” Here, a clinician who is struggling to find ethical principles and standards that are not explicitly outlined in the APA ethical code can infer meanings from similar professional associations’ ethical codes (communicable ). In addition the Canadian Psychological Association have even included steps in their ethical code and the following are examples of some of these steps: anticipate who will be affected by your decision, review relevant legal standards, review the relevant research and theory, and consider consultation (Pope). Two of the most crucial steps a clinician can take in order to make a sound and fair decision as well as protect themselves from future criminal or civil proceedings is to document everything that is seen and said as well as everything that is not seen and said. What the latter refers to is the idea that if a patient ultimately kills someone and that patient was never identified as being a violent risk, then the governing bodies will want to know why the therapist didn’t observe this violent predictive behavior. Thus, if the therapist never documents why the patient wasn’t observed as a violent risk, then the governing board will find fault with the therapist and question their ability to provide adequate therapy (practice and policies).

Tarasoff v Regents. Difference between duty to protect, disclose, warn, etc.

APA, ACA, IRB, Belmont, Common Rule, IOM,

What to do

Tests and Measures – Threat Assessment

Clinical Training

Risk Assessment

Consult

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