Ethics of Privacy and Confidentiality in Therapy

Abstract

Section 4.0 of the Ethical Principles of
Psychology and code of conduct by the APA (2002) is titled Privacy and
Confidentiality. Privacy is a person’s right, first and foremost, as a patient
or client and is something taken very seriously. Lives are affected by
breaching confidentiality; the failure to preserve a client’s confidentiality
seriously threatens to diminish the public’s confidence of the field as well as
the reputation of the therapist in violation, as well as the institution or
practice they are associated with. Psychologists appreciate that in order for someone
to feel at ease talking about private and often hurtful information, that
individual needs to feel that they are in a safe place, with no fear of their
thoughts or feelings leaving that room. It is most vital to the trust
relationship of researcher and participant, therapist and client, and to the
integrity and professionalism of psychology. Therapists or any field deemed
being a professional means that you special duties and accountability to those you
serve and now this is often includes others as specified in ethical principles
(Association for Applied Psychophysiology and Biofeedback, 2002). Privacy and
Confidentiality equals trust, yet for a therapist this core standard is not
always as cut and dry as it may seem, and can be a very complex issue for many
unforeseen situations when it also involves legal concerns.

The first
official ethical standards of the APA were put in print in 1953(Canter, 1994),
working fundamentally as an educational tool, informing and educating on
behaviors and values that are deemed imperative in teaching, in research, and
providing psychological services. Unfortunately, not all keep up with these
ever changing codes until it too late and they are under investigation, have a
complaint or other grievance complaints. Ignorance is not a defense in these
cases; in fact it too in itself is a violation as well. Section 2.03:
Maintaining Competence, states that a Psychologist is to undertake ongoing
efforts to develop and maintain their competence (e.g., continued study and
necessary training of updated research and methods) (APA, 2002).

Section 4.0 of
the Ethical Principles of Psychology and code of conduct by the APA (2002) is
titled Privacy and Confidentiality. Privacy is a person’s right, first and
foremost, as a patient or client and is something taken very seriously. Lives
are affected by breaching confidentiality; the failure to preserve a client’s
confidentiality seriously threatens to diminish the public’s confidence of the
field as well as the reputation of the therapist in violation, as well as the
institution or practice they are associated with. Psychologists appreciate that
in order for someone to feel at ease talking about private and often hurtful
information, that individual needs to feel that they are in a safe place, with
no fear of their thoughts or feelings leaving that room. This is why at an
individual’s initial visit; the Therapist should provide their client with
written information explaining privacy policies, and how their private
information will be managed, as well as the special circumstances as to which
there would be an exception to these policies. Theses exceptions could be if
you are a threat to yourself (suicidal), enduring domestic violence, abuse, or
neglect a child, the elderly, or people with disabilities or in other cases
such as if your records are subpoenaed regarding your mental health, or of
treatment are court ordered.

Privacy and
Confidentiality equals trust, especially because unfair conclusions and
embarrassment can be drawn from the breach of it, even after an individual’s
death. An example would be Thomas Eagleton being dropped as George McGovern’s
vice presidential running mate in 1968 after it was released publicly that he
had treatment for depression. Another example was in the Menendez brothers
case, threats from one brother towards the other’s therapist leaked played a
huge role in their conviction (Koocher & Keith-Spiegel, 2016). With the ever
evolving nature of our society and technology advancements have some debating
the traditional meanings of privacy and confidentiality or if in fact they even
exist anymore; especially with popularity of social media. These technology
advancements such as the Internet and the World Wide Web have caused concerns
about computerized data systems and their threats of being breached as well. Yet,
the trust expressed through the oath of confidentiality appears immensely critical;
some make a case that therapy possibly could lack any effectiveness without it
(Koocher & Keith-Spiegel, 2016).

Doctors and
counselors are ensuring trust and that your personal business stays just that,
personal. Yet for a therapist this core standard is not always as cut and dry
as it may seem, and can be a very complex issue for many unforeseen situations when
it also involves legal concerns. There is a difference between the two. Privacy
meaning the relationship between the psychologist and other individuals (e.g.,
patients, clients), involving the basic privilege of people to decide how much
of their information is to be shared with others, and Confidentiality involves
the information that is gathered or held by the therapists (Nagy, 2011), and is
an explicit oath not to reveal anything about a client. The obligation of
confidentiality forbids the therapist to disclose information about the
patient’s set of circumstances to others without consent. Although there may be
some circumstances where the therapist may feel persuaded to share information
to a spouse or parent/s, the conditions for making an exception may not have
been met. There must be written consent from the patient to share information
with family members, apart from in some exceptions to the rule where the spouse
or family member may be at risk of harm from the client. This is where it can
get tricky. It is illegal to share information, but at the same time a
therapist has a duty to protect third parties from harm if they have
information that could prevent it (e.g., specific plan of homicidal ideation,
nondisclosure of AIDS to a partner, etc.). In these circumstances the therapist
has to make an important and often difficult decision, keeping in mind the
laws, what they will tell the patient as to their plans of what to do with this
information.

By and large, under general law, an individual does not have a duty to control the behavior of another nor a duty to warn those at threat (Doing their duty: An empirical analysis of the unintended effect of Tarasoff v. Regents on homicidal activity, 2014). Tarasoff v. the Regents of the University of California made an exception to the rule. This case brought the issue of clarifying the obligation to or duty to warn and protect of a therapist in order to protect the community from a potentially dangerous patient (Chaimowitz, et al., 2000). Prosengiit Poddar told his therapist that he intended to kill his ex girlfriend, Tatiania Tarasoff. In return, the therapist presented both oral and written forewarnings to the campus police, who interviewed Poddar and consequently let him go. Poddar then killed her, and her parents filed a lawsuit stating that she too should have been warned. In this case, the California Supreme Court ruled that “protective privilege ends when the public peril begins” (Behnke, 2005). This case ruling brought with it many questions and concerns. Would it be used beyond California? Yes, cases in Nebraska, Illinois, Colorado, and New Jersey to name a few. Would it now impede treatment? How do you warn unknown individuals? In the case of Jablonski by Pahls v. United States in 1983, Phillip Jablonski, after killing his girlfriend, his VA psychiatrists were found negligent for not obtaining prior medical records, which indicated a prediction of violent behavior, even though he had never made any specific threats concerning his targeting of his ex girlfriend to them (Kopels & Kagle, 1993).

Prior to the
Tarasoff case, the obligation was to the client, now it seems to have turned to
be through the client as well. Therapists may now be torn between the principle
of confidentiality and the person’s, who the threats were made about, safety,
as well as legal issues involved in taking on risky clients. Both legal and
ethical viewpoints, the crucial assessments of responsibility are still
determining whether therapists knew or should have known of the client’s
dangerousness. One must remember that violent fantasies do not on every
occasion indicate that violent behavior will ensue.

There is good
and bad that has come along since the Tarasoff case. I understand that the goal
of this law/case is to save lives, but if a therapist is being told from
outside sources such as friends or family that a client has made an alarming
statement to harm, yet the therapist is not familiar with these individuals at
all and the client has never mentioned or left the impression of doing anything
to harm someone else, how is a therapist to know the credibility or intentions
of these third parties? Some research has found that there has been an
unintended increase in violence because of it (Doing their duty: An empirical
analysis of the unintended effect of Tarasoff v. Regents on homicidal activity,
2014). Their findings show that patients are now forgoing
preventative mental health treatment or their willingness to openly discuss
their issues, as well as the possibility of therapists not willing to take on
risky patients. It is the reassurance of confidentiality that has been
permissible by many individuals to try to find help who otherwise would not.

Many complex complications
can occur and rear hesitancy about giving information, even if it is to ensure
the safety and wellbeing of a client. There can be negative consequences,
besides legal, for the therapist in making hasty or wrong decisions or
overreacting to a situation, maybe even putting someone at greater risk if
there is abuse involved. The balance between legal obligations and protecting
your client’s rights is imperative. Even when consulting with colleagues, a
therapist must never reveal confidential information that could possibly cause
the identification of a client unless they have obtained the prior consent of
the client.

In conclusion,
Privacy and Confidentiality are very important to Psychologists or any mental
health practitioner. Therapists or any field deemed being a professional means
that you special duties and accountability to those you serve and now this is
often includes others as specified in ethical principles (Association for
Applied Psychophysiology and Biofeedback, 2002). Lives are affected by
breaching confidentiality; the failure to preserve a client’s confidentiality
seriously threatens to diminish the public’s confidence of the field as well as
the reputation of the therapist in violation, as well as the institution or
practice they are associated with.  Donald Bersoff stated of confidentiality that
no other ethical duty has been more misunderstood and yet honored by its breach
rather than by its fulfillment (Koocher & Keith-Spiegel, 2016). It is the
foundation to the relationship between therapist and client, for making
counseling effective, as well as the legal right of the client.

A better way to
simplify and understand confidentiality and its exceptions of being breached
would be the Five C’s approach (Merideth, 2007).  Consent
of the client is needed, unless there is a Court
order, Continued Treatment of a
client, Comply with the Law, or
mandatory reporting orders, or Communicate
a Threat, as in the Tarasoff exception.

These issues of
Privacy and Confidentiality being law are not new; they can be traced back to
the 1970s, to the report of the Privacy Protection Study Commission that
recommended that Congress pass information privacy legislation, protecting individuals’
personal records kept in private sector databases (Mirr, 2011). The nationwide
legislation of HIPPA’s privacy rule, which includes psychotherapy and mental
health, states that individuals have the right to limit the sharing of their
information, also providing more control for patient’s (Frank-Stromborg
&Ganschow, 2002). The positives of maintaining privacy and confidentiality is
that it allows the client to feel at ease talking about private and often
hurtful information, that individual needs to feel that they are in a safe
place, with no fear of their thoughts or feelings leaving that room. It is most
vital to the trust relationship of researcher and participant, therapist and
client, and to the integrity and professionalism of psychology. It makes
counseling successful, because if a patient doesn’t trust the therapist they
are unlikely going to be honest about their feelings and problems, and may never
receive the necessary coping skills or help needed. Such a client may be
hesitant to really try any coping approaches recommended by the therapist.

Although I do
agree that there are situations where there should be a calling for the breach
of these essential and exceedingly crucial principles, as well as playing
Devil’s Advocate, yet now some courts of law anticipates mental health
professionals having the abilities to predict the impending harm or dangers of
their client’s possible actions. In addition, my concerns lie with the idea of
using therapists as police and holding them responsible without taking all of
the circumstances into consideration. The question here is if a therapist
agrees that in spite of any moral, ethical, or professional opposition, there
subsists a legal obligation to warn and protect, how then does one ensue
interventions in a way that is minimizing risk to all involved? I worry that
although meant to aid, it can become an inhibitor to preventative mental health
care and a therapists’ ability to alter criminal behavior, because now there is
a major cause for anxiety and discouragement, for the mentally ill patient as
well as the therapist. In this day and age of our society, being obsessed with
privacy but at the same time obsessed about obtaining information, can we
really expect to maintain total privacy and with social media, do people even
still care about confidentiality? These are the issues and considerations that
we face going into the future, and why there will never be an exact or definite
definition that can ever pertain to every situation.

References

• Association for Applied Psychophysiology and Biofeedback. (2003). Ethical principles of applied psychophysiology and biofeedback. Wheat Ridge, CO:
• Behnke, S. (2005). On being an ethical Psychologist. American Psychological Association. 36(7), 144
• Canter, M. B. (1994). Ethics for psychologists: A commentary on the APA ethics code (1st ed.). Washington, DC: American Psychological Association. doi:10.1037/10162-000
• Chaimowitz, G. A., Glancy, G. D., & Blackburn, J. (2000). The duty to warn and protect—impact on practice. The Canadian Journal of Psychiatry, 45(10), 899-904.
• Doing their duty: An empirical analysis of the unintended effect of Tarasoff v. Regents on homicidal activity. (2014). 57(2), 321-348. doi:10.1086/675668
• Ethical principles of psychologists and code of conduct. (2002). American Psychologist Association, 57(12), 1060-1073.
• Frank-Stromborg, M., & Ganschow, J. R. (2002). How HIPAA will change your practice. Nursing, 32(9), 54-57.
• Koocher, G. P. & Keith-Spiegel, P. (2016). Ethics in psychology and the mental health professions. New York, NY: Oxford University Press.
• Kopels, S., & Kagle, J. D. (1993). Do social workers have a duty to warn? Social Service Review, 67(1), 101-126. doi:10.1086/603967
• Merideth, P. (2007). The Five C’s of Confidentiality and How to DEAL with Them. Psychiatry (Edgmont), 4(2), 28–29.