| In Celebration of Dual Relationships: How Prohibition of Non-sexual Dual Relationships Increases the Chance of Exploitation and Harm/Ofer Zur | |
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Ethical Alternatives and Legal Constraints on Confidentiality for Family Psychologists/Michael C. Gottlieb |
| Treatment Record Audits: The Practitioner’s Dilemma/Janet Hibel | |
| Division 42 Ethics Committee Report/Lenore Walker, Chairperson |
| By Michael C. Gottlieb, Ph.D., F.A.F.P. | Ethical Alternatives and Legal Constraints on Confidentiality for Family Psychologists
Our concept of confidentiality is derived from the priest-penitent relationship. Priests are bound not to reveal information given them during confession. Maintaining this obligation is believed to foster truth telling which is the only way one can receive absolution. Through the tradition of English Common Law, certain professions also acquired the obligation of maintaining confidentiality such as law and medicine, and these requirements are now included in most professional ethics codes. However, confidentiality is based upon a two person relationship. In fact, by common law, anything said in the presence of a third party is not to be considered confidential. During the early years of our profession, psychotherapy was also a two-person relationship, and ethical conflicts seldom arose because the ethical guidelines regarding confidentiality were relatively clear-cut. In fact, there is much traditional lore about family members becoming angry with psychotherapists who would withhold information from loved ones based upon confidentiality obligations. Family members who were excluded from the process sometimes tried to sabotage the professional relationship. All of this changed in the mid-fifties when persons from various professional disciplines began to see multiple clients. This development occurred in group psychotherapy and marital and family therapy. With this change came unique ethical dilemmas not previously considered (See for example: Gottlieb and Cooper, 1993; Gottlieb, 1995; and Lakin, 1994). In this article, I consider the specific ethical dilemmas that surround confidentiality when treating couples and families. First, I will distinguish between privacy, confidentiality and privilege and then review the available options from which practitioners may choose. Next, I will discuss a number of legal issues that constrain confidentiality and finally make some recommendations for practice. Privacy Confidentiality and Privilege These terms are often used interchangeably lending to great confusion and misunderstanding on the part of practitioners. It is important to understand their differences, and in this section, I will briefly define each one. Privacy Privacy is a state of inaccessibility and is based morally on the respect for autonomy (Beauchamp and Childress, 1994). It refers to a person’s right to be left alone, and to decide when, if and how one will share oneself with others (Stromberg et al., 1988). It entails the right to determine, as much as possible, what happens to us and to control information about us. Legally, privacy received little attention, and can only be inferred as a liberty interest from the Fourth, Fifth and Fifteenth Amendments to the U.S. Constitution (Koocher and Keith-Spiegel, 1998). It was not until 1965 that the U.S. Supreme Court determined in Griswold v. Connecticut, in a case regarding contraception, that a person had a right to shield information form others and that there was a “zone of privacy” that was protected from state intrusion (Stromberg et al., 1988). So, privacy is a right to limit accessibility, but it also refers to a person’s right to decide how much of their thoughts and feelings should be shared with others (Koocher and Keith-Spiegel, 1998). Confidentiality Confidentiality exists when one person discloses information to another and the person to whom the information is disclosed pledges not to divulge that information to a third party without the confider’s permission (Beauchamp and Childress, 1994). That is, confidential information is both private and voluntarily imparted in confidence and trust to others. The reasons for confidentiality include the consequences of not doing so, a respect for privacy and autonomy, the need to maintain loyalty and one’s fiduciary responsibility to patients (Beauchamp and Childress, 1994). While we give up some measure of privacy when we grant others access to information about us, we also retain some control over that information. An infringement of patient confidentiality arises if I disclose information given to me in confidence without permission to do so. On the other hand, a patient’s privacy is violated if someone breaks into my office and steals their records. Privilege Privilege is a legal protection against being forced to break a promise or expectation of confidentiality in legal proceedings (Stromberg, et al., 1988). This is the narrowest of the three concepts since it protects information only in very specific circumstances. Generally, privilege is designed to keep certain matters confidential. The privilege is owned by the patient, and we are required to ask them to waive their privilege before we divulge information that would otherwise be confidential. There are numerous statutory exceptions to privilege, such as mandated reporting of child abuse, which vary by state. Alternatives How is the ethically conscientious psychologist to manage confidentially when s/he has more than one patient? The APA Ethical Principles and Code of Conduct (1992) provides some assistance in this regard. The Code emphasizes the need to decide who is and is not a patient at the outset and what the professional relationship will be with each person (See Sec. 4.03). The Code devotes an entire section to confidentiality (Section 5), but nowhere does it address the issue of how to manage confidentiality with multiple patients. Hence, the practitioner is left to his or her own devices regarding how to proceed. Essentially, the practitioner has five alternatives (Gottlieb and Cooper, 1993). First, s/he may decide to see family members individually and conjointly and keep confidential information that was obtained during individual sessions. This alternative is appealing since it simplifies the problem and is more consistent for those with a psychodynamic background. Another advantage is that information may be revealed that might not have been disclosed had confidentiality not been assured. On the other hand, this position may require the practitioner to keep information from other family members to whom s/he is equally responsible, even though it might be vital to them. Finally, this choice might reduce treatment effectiveness, since the information obtained from one party may not be used during conjoint sessions. For example, how is a practitioner to proceed when s/he is providing marital therapy and learns from the husband that he is HIV+ and is now not free to tell the man’s wife. (N.B. Some states may require disclosure in this situation.) More generally, another disadvantage to this approach is that the practitioner may become triangulated into marital conflict by a patient who knows that the information s/he discloses will not be revealed to his/her partner. Second, a practitioner may adopt the opposite position and refuse to keep any information confidential whether patients are seen individually or conjointly. This position is appealing because it is straightforward and easy to implement. Unfortunately, it also has a very serious disadvantage. If a family member knows that information will be shared with others, s/he may choose not to divulge it to the practitioner. This is a serious problem since the practitioner, had s/he known the information, might have treated the family quite differently. Therefore such a position may lead to the treatment effectiveness being seriously compromised and other family members potentially harmed because the information was not revealed. An excellent example is the situation in which an abused spouse refuses to disclose the maltreatment for fear of retaliation. (N.B. This option does not require that all information necessarily be shared, only that the practitioner be free to share it if s/he chooses to do so. This alternative also presumes that certain information will not be shared with children.) A third possibility is to keep certain information confidential. This is a common practice in child psychotherapy for example, where parents may be given some information regarding the treatment of their child, but not given personal details the child prefers kept confidential. Similarly, it is also common to exclude children from family therapy discussions of purely adult matters such as finances or the couple’s sexual relationship. Keeping certain information confidential therefore seems to be an appealing compromise, especially since it is already done so frequently. The problem with this choice is that it requires that the practitioner knows where to draw the line, because one must decide in advance which information will be held in confidence and which will not. The fourth alternative is to have no general policy and decide these matters on a case by case basis using one’s best clinical judgment. For example, one may have a general policy of keeping no secrets yet agree to keep one if the practitioner had a reason to believe that revealing the information would be harmful. For example, there may be no harm in keeping from a husband knowledge of his wife’s long dead love affair, especially if the affair had the effect of bringing them closer together. On the other hand, the information might be vital to the husband. Hence the wife’s minimizing of the issue risks triangulating the practitioner into spousal conflict as harming the husband to whom s/he is equally responsible. A final possibility is to agree to keep a secret temporarily. For example, a husband may have information vital to his wife’s welfare which he is afraid to reveal. The practitioner may choose to proceed, keeping the secret temporarily, with the understanding that it will be revealed at specific time in the future. In the meantime the practitioner helps the husband deal with his fear about revealing the information. This procedure is often used by some who specialize in the area of infidelity. However, a serious disadvantage can arise if the husband changes his mind and prohibits the practitioner from disclosing the information. In such a circumstance the practitioner must withhold the information but by doing so risks harming the wife. This issue can be circumvented by informing the husband that if he does not reveal the information by the agreed upon date, the practitioner reserves the right to do so. A superficial examination of these alternatives immediately reveals that no one will be suitable in all clinical situations. Below, I discuss some matters practitioners should consider before deciding how to proceed. Before doing so, some legal issues must first be considered. Legal Constraints Working with couples and families creates vexing legal issues as well as ethical ones. Here I will highlight some of the more salient legal ones. Co-Mingled Records Systemically oriented practitioners see great value in keeping co-mingled records, that is one record for all family members, since it preserves the interactional data that are so important to the understanding of family functioning. While there has been some controversy regarding this process in the past, I believe there is now a consensus that this practice is both clinically indicated and ethically well grounded (Gottlieb, 1993). Nevertheless, keeping records in this fashion can create difficulties. For example, a couple was seen for marital therapy. They subsequently divorce and the husband now wants his treatment records sent to another practitioner. Were this an individual patient, the practitioner would simply obtain a release from the husband and then forward the information. But if the records were co-mingled, the practitioner would not be able to do so without first obtaining the release of the former wife since both of them must consent to the release before the record can be sent. Subpoenas and Child Custody Disputes Psychologists often become embroiled in ethical dilemmas when marital therapy fails and former patients choose to divorce. A basic tenant in working with families is the need to maintain therapeutic neutrality (Margolin, 1992). While doing so can be difficult enough when doing treatment, it can become a significant problem when the former patients are in the midst of litigation. Maintaining neutrality may be especially difficult when one receives a subpoena from one of their attorneys. A subpoena is a command to appear and give testimony (Black, 1991), and we are usually subpoenaed to appear and to bring our records (a subpoena duces tecum.) APA, through the Committee on Legal Issues, has produced a excellent document on how practitioners should respond to subpoenas (COLI, 1996), but this document does not address the question of how to respond when one has co-mingled records, especially when one party has provided a release to the requesting attorney and the other has not. In such a situation, the psychologist could call the non-releasing spouse and see if s/he were also willing to release the records. If the non-releasing spouse was unwilling to do so, the practitioner can request to speak with his or her attorney. The attorney may choose to file a motion to quash the subpoena in order to protect the records. In the event that this strategy is not successful, the psychologist may find it necessary to hire his or her own attorney in order to protect him/herself as well as the patient whose release was not obtained. (For a more detailed discussion of this dilemma, see Gottlieb, 1999). A Scientific Dilemma There is an even more complex problem with co-mingled records. There is ample data from social psychology to support the systemic assumption that behavior is a function of context. (For a brief review see Gottlieb, 1995; and Pynchon and Borum, 1999.) Let us take a typical situation. A psychologist receives a request for information about a former patient along with his release. The patient was seen in conjoint therapy with his former wife and is now seeking individual treatment. The practitioner asks the wife to release her record so the practitioner can respond, and she agrees. In this case the entire record can be forwarded and the new therapist will understand the context in which the prior treatment took place. What is the practitioner to do if the ex-wife refuses to release the information? One way of dealing with this problem has been to redact those portions of the record that pertain to the wife so that information about her is protected and only information regarding the husband is released. This practice raises a fascinating problem that to my knowledge has never been tested in court. Let us assume further that the information is requested by an attorney, the wife refuses, and the practitioner forwards the redacted record. In this example, the attorney is requesting information about his or her individual client, but the data s/he receives will reflect the husband’s behavior only in an interactional context. To what degree can the information then be relied upon as accurate regarding the husband’s individual behavior in other contexts? A similar problem arises when psychologists are asked to testify. How is one to testify about an individual’s behavior when s/he was only seen in an interactional context? In my view the psychologist is on scientifically shaky ground when testifying about an individual in such a manner. Recommendations There are no clear-cut solutions to the dilemmas I have discussed, and there is no specific set of recommendations that will serve the practitioner in all circumstances. Nevertheless, I provide the following general recommendations for your consideration.
Conclusion There are very little data regarding the clinical impact of the ethical decisions we make. No one knows what effect our decisions have on patients or the treatment process. Until there are answers to these vexing questions, I recommend choosing a course based on the model noted above, informing patients of it and then adhering to it. This advice will not solve all the legal and ethical problems that can arise, but it is the best risk management technique that I know. It will reduce the likelihood of problems arising and help to manage them better if they do. References American Psychological Association. (1992). Ethical principles and code of conduct. American Psychologist, 47, 1597-1611. Beauchamp, T.L., & Childress, J.F. (1994). Principles of biomedical ethics (Fourth Edition). New York: Oxford. Black, H.C. (1991). Black’s law dictionary (Abridged Sixth Edition). St. Paul, MN: West Publishing Co. Committee on Legal Issues. (1996). Strategies for private practitioners coping with subpoenas or compelled testimony for client records for test data. Professional Psychology: Research and Practice, 27, 245-251 Gottlieb, M.C. (1993). Co-mingling of patient records: what’s a family psychologist to do? The Family Psychologist, 9, 19-20. Gottlieb, M.C. (1995). Ethical dilemmas in change of format and live supervision. In R.H. Mikesell, D. Lusterman, & S.H. McDaniel (Eds.). Integrating family therapy: Handbook of family psychology and systems therapy (pp. 561-570). Washington, D.C.: American Psychological Association. Gottlieb, M. (1996). Some ethical implications of relational diagnoses. In F. Kaslow (Ed.) Handbook of relational diagnosis and dysfunctional family patterns (pp. 19-34). New York: John Wiley. Gottlieb, M.C. (1997). An ethics policy for family practice management. In D.T. Marsh & R.D. Magee (Eds.). Ethical and legal issues in professional practice with families (pp. 257-270). New York: John Wiley. Gottlieb, M.C. (1999). Consulting and collaborating with attorneys. In F. Kaslow (Ed.). Handbook of couple and family forensics. New York: Wiley. Gottlieb, M.C., & Cooper, C.C. (1993). Some ethical issues for systems oriented therapists in hospital settings. Family Relations, 42, 140-144. Griswold v. Connecticut, 381 U.S. 479 (1965) Lakin, M. (1994). Morality in group and family therapies: Multi-person therapies and the Lakin, M. (1994). Morality in group and family therapies: Multi-person therapies and the Lakin, M. (1994). Morality in group and family therapies: Multi-person therapies and the 1992 ethics code. Professional Psychology: Research and Practice, 25, 344-348. Margolin, G. (1982). Ethical and legal considerations in marital and family therapy. American Psychologist, 37, 788-801. Pynchon, M.R., & Borum, R. (1999). Assessing threats of targeted group violence: Contributions from social psychology. Behavioral Sciences and the Law, 17, 339-355. Stromberg, C.D. et al. (1988). The psychologist’s legal handbook. New York: Council for the National Register of Health Service Providers in Psychology.
Michael C. Gottlieb, Ph.D. is a Board Certified (ABPP) family psychologist who practices family and forensic psychology in Dallas. A fellow of APA, Dr. Gottlieb is a Clinical Associate Professor at the University of Texas Health Science Center and is a Partner in J.M. Craig Press. Inc., an online publication service to the family law community. Requests for reprints may be sent to the author at: 12810 Hillcrest Rd. Suite B224, Dallas, Texas 75230 or electronically to: mcgottlieb@juno.com |
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