| Arthur M. Bodin, Ph.D. | Laws and Ethics as Double Binds: Selecting From the Spectrum of Resolutions
ABSTRACT: Laws sometimes conflict with ethics —— and sometimes even with other laws. These instances pose difficult dilemmas for psychologists. Consultation with a knowledgeable colleague and/or an attorney with appropriate special experience would probably be worthwhile. Such consultation may help us to decide what actions to take, but it does not resolve the underlying conflicts. Real resolution could be pursued via several paths, some of which are discussed in the article. There are at least four types of potential resolutions, which are discussed — from most to least desirable — though this ranking may vary with the circumstances. This article gives four examples of legal/ethical double binds for psychologists and considers the relative merits of four possible remedies. An Ethics/Legal System Conflict Many years ago a student at Stanford Law School telephoned me with the following question: “What should a psychologist do if subpoenaed to bring Rorschach Test cards to court, since the ethical principles of psychologists require protection of such stimulus materials but the subpoena was, in part, for the evaluation file of a patient who had waived the privilege?” I telephoned Patricia Keith—Spiegel, then chair of APA’s Ethics Committee, and she replied that the law would take precedence. I believe a psychologist could take a couple of additional steps to protect the Rorschach cards from public display. Such steps include educating the judge through a communication which will include the relevant ethical principle and an explanation of how such a public display could invalidate the test in future administrations. This communication should also describe how incredibly costly and time consuming it would be create an equivalent instrument —— in view of the thousands of research publications on the present instrument. The communication with the judge could also include a request to have all cameras of any kind removed from the courtroom during any display of such cards the judge might order. The communication could also emphasize how important it is that the psychologist be able to take the cards away from the courtroom. It would emphasize that the cards constitute one of the tools of his or her trade and that leaving them as a marked piece of evidence might render them reproducible by the press. The principle we may extract from this example is that our right to practice exists within the framework of law and that when the ethical principles of our profession are in conflict with the law we may have to accede to the law. However, some psychologists may wish to resist such a conflicting law but should be aware that a judge may be able to impose penalties including time in jail. Moreover, the psychologist may be wise to protect the materials and him/herself by complying only after being compelled, specifically by a court order. A Law/Ethics Conflict Another instance of law and ethics in conflict occurred in 1979 when the APA Council of Representatives was considering the proposed revisions resulting in the Ethical Principles of Psychologists, which preceded the present version. In my turn at a microphone I stated that the ethical requirement of absolute confidentiality favored by an earlier speaker, Max Siegel, would place California psychologists in a situation requiring us to decide between violating either the code of ethics of our profession or the law of California. I pointed out that the Tarassoff case in California imposed on psychologists a duty to warn and protect any identifiable person(s) about whom the patient had made a serious threat. I observed that this dilemma was likely to arise in other states in the future and that some psychologists might extricate themselves from this double bind by reluctantly relinquishing their membership to the APA so as not to be bound by it’s ethical principles. [The laws and regulations governing the practice of psychology in California today require that psychologists practice according to standards of our profession. Thus, a California psychologist could not escape the double bind by withdrawing from the APA.] Finally, I asked the Council not to create conditions that could force upon a California psychologist the choice of either violating our ethical principles or violating the law! Max Siegel responded, as nearly as I can recall, as follows: “Art Bodin! You’re old enough to remember the Nuremberg trials! Sometimes laws are subordinate to ethical principles.” APA President chairing the meeting, Nicholas Cummings intervened, saying, “Will you two please go to dinner and compose your differences so that when Council reconvenes for its second day you can present us with a wording that you can both live with?” We did just that. This is the origin of the concept in our ethical principles that confidentiality shall be maintained except as required by law. This acknowledgement that there are limits to confidentiality is embodied in our current Ethical Standard 5.01: Discussing the Limits of Confidentiality. A Law/Law Conflict About a dozen years ago I received a telephone call from a psychology doctoral candidate about a survey he was conducting based on his experience managing forensic cases in Germany for some years while he had a Master’s Degree in Psychology. One of his survey questions posed the dilemma that follows. A psychologist has been retained by a defense attorney to evaluate a defendant accused of a crime. In the course of the evaluation the defendant mentioned having molested some children. Child molestation is not the crime of which he has been accused. Should the psychologist file a child abuse report? The survey included a sample of psychologists, a sample of attorneys, and a sample of some who were both. As I recall, the psychologist sample tended to believe that under the circumstances the psychologist must report, while the attorney sample tended to believe that the psychologist must not. A psychologist might well be mindful of the fact that failure to report could result in license revocation. An attorney might well be mindful of the fact that the psychologist was working not under the psychotherapist—patient privilege but under the attorney work — product privilege. The attorney might be incensed at what he or she might construe as a breech of this privilege and might pursue a remedy through a lawsuit, an ethics complaint and/or a complaint to the licensing board. The psychologist might or might not be aware of these feelings, but might be concerned about the attorney not wanting to make any further referrals. One possible approach would be for the psychologist to craft a “Consent to Evaluation” form that would include — as a reminder to the attorney and notice to his or her client — that the child abuse reporting duty has no statutory exception for criminal defense evaluations. Once I discussed this dilemma with a former next-door neighbor after he had become an Associate Justice of the United States Supreme Court. He stated that the rights of a person accused of a crime are protected in the Constitution and that therefore the defense attorney’s point of view might be more protected than the psychologist’s point of view. He suggested that the best way for us to end the continuing risk of being left to “twist slowly in the wind” might be to seek legislation which would clarify our duty under these circumstances in state and, perhaps, federal jurisdictions. A Law/Law/Ethics/Conscience Conflict While teaching a course on Advanced Ethics and Professional Issues, I received from a student the following clinical conundrum. A forty-year-old man has an initial session with you and tells you that he has just tested HIV positive. He tells you that his forty-year-old wife hears her biological time clock ticking. Her dearest wish in the entire world is to have a child. He tells you that he intends to help her fulfill her wish. He has not told her of his HIV positive status. Despite your best efforts, he remains unwilling to tell her so that she can decide for herself what course of action to take. This situation poses very difficult choices for the psychologist. Does it meet the criteria for a “Tarassoff warning” as defined in the California statute which was passed a few years after the Tarassoff decisions? This statute —— jointly sought by the California Psychological and Psychiatric Associations —— was designed to clarify when the psychotherapist’s duty arose and what would constitute discharging it. This law states that if a patient communicates to a therapist a serious threat to physically harm an identifiable person then the therapist must attempt to warn that person and must notify the police. The patient was made aware of this limitation of confidentiality in the “Consent to Treatment” form he signed at the outset of the initial session. He maintains, however that he does not wish to harm his wife but, instead, wishes to help her. He points out that she may already have become infected by him or by some other man prior to their recent marriage and cites research he has read to the effect that a woman may not become infected until after an average of 100 exposures to HIV through sexual intercourse. Moreover, he mentions that there is a law in California specifically prohibiting the disclosure of a patient’s HIV status, even to other health care providers. Though this law may apply only in certain contexts, a psychologist is not usually an attorney and does not necessarily have a clear picture of the legal requirements and prohibition in which the course of action must be crafted. I have posed this dilemma at several presentations of the Forensic Psychology Committee of the Professional Practice Division of the California Psychological Association. Different attorneys present have responded with different theories. One said, “What do you think the likelihood is that a jury would support the husband’s claim that the psychologist had breached confidentiality, given that the purpose was to warn the woman and thereby enable her to make her own decision about whether and if so, how to protect herself?” The attorney did not address the logical additional concerns of the possibility that the husband would file an ethics and/or a licensing complaint. In the latter instance, the standard of proof is less stringent and, at least in some states, the licensing board can overrule the administrative law judge whose decision seems too lenient. Another attorney pointed out that a psychologist has a duty to hospitalize a patient who seems dangerous to self or others or can no longer care for him/herself. While this patient seems to pose some danger to his wife, how well would this be addressed by having him placed on a 72——hour hold? What is the likelihood that this hold would be further extended and result in a commitment or that the patient would change what he said he would do (and what he would actually do) as a result of what he could perceive as an attempted coercion? What would happen to his wife and to the psychologist after the 72—hour hold? Contemplation as a Catalyst for Change In the last illustration, as in the other three, we are posed with a profoundly troubling puzzle that we are incapable of resolving in a way acceptable to all reasonable people. I believe it is folly for us to continue to tempt fate by leaving these potential conflicts unaddressed. For reasons stated below, I believe that the best remedy is to seek legislation clarifying what our course of action should be in situations such as but not limited to those above. These cases can confront us with conflicts characterized by compellingly cogent but irreconcilable demands. Laws sometimes conflict with ethics —— and sometimes even with other laws. These instances pose difficult dilemmas for psychologists. Consultation with a knowledgeable colleague and/or an attorney with appropriate special experience would probably be worthwhile. Such consultation may help us to decide what actions to take, but it does not resolve the underlying conflicts. Real resolution could be pursued via several paths, some of which are discussed below. There are at least four types of potential resolutions, which are discussed —— from most to least desirable —— though this ranking may vary with the circumstances.
Selecting from the Spectrum of Resolutions 1. Statutory Change A legislative remedy can be crafted cooperatively with one or more powerful legislators. In California there is a two—year legislative cycle. Success may elude our efforts in the first year, but the time expended should be regarded as an educational phase in preparation for a greater “push” in the second year. Outcomes can be controlled better and are more stable than those of litigation. Unless these instances in which law and ethics collide are addressed, we shall be reduced to the plight of offering passive pronouncements as illustrated in one of Ashleigh Brilliant’s books. A guru sits cross—legged as he presents his considered opinion about the conundrum he has been contemplating: “I don’t have any solution, but I certainly admire the problem!” 2. Regulatory Change Seeking a remedy through obtaining regulatory change depends on quiet diplomacy, possibly with the assistance of one or more legislators. Moving policy along this path can produce results with relative rapidity. However, what can be done this way can also be undone. 3. Attorney General’s Opinion (AG’s Opinion) Another conceivable solution is to seek an Attorney General’s (AG’s) opinion. This course of action may result in an opinion somewhat different from what had been desired. Furthermore, such opinions may provide guidance but fall short of having the full force of law. 4. Litigation Litigation is often the last but sometimes the only remaining resort. Such a course could be initiated by the psychologist or by someone who is unhappy with the psychologist’s attempt to resolve the conflict. In at least the first instance, it would be extremely important for the psychologist to coordinate his or her efforts with the appropriate state psychological association and with the American Psychological Association — probably through its Committee on Legal Issues (COLI) — because the outcome can effect psychologists throughout the state and the nation. Thus, it is important that collective wisdom be applied to the determination of answers to questions such as those which follow: (a) Is the law moving in a direction which makes this a favorable time for obtaining a desirable result? (b) Is the underlying question of sufficiently high priority to commit the state psychological associations and/or APA to support at least part of such an effort — the ultimate financial cost of which cannot be predetermined? (c) What would be the earmarks of “a good case” for producing the desired results and does the present fact situation — along with its promulgator have those earmarks? (d) What would be the jurisdiction most favorable to the desired outcome of such an action — and is this situation within that jurisdiction? (e) What other cases are “out there” (possibly ascertainable through a survey of or announcement to association members) and would any of these cases be better selections in terms of such factors as those mentioned. One drawback of litigation as a means of resolving laws and ethics double binds is that a decision at the lower court level lacks precedential power. Even a decision at the appellate court level does not necessarily have the power of precedent. Published appellate decisions have this power —— that is, unless they are subsequently de-published. Thus, if a psychologist obtains a favorable lower court decision, it does little to resolve the double bind for other psychologists. If the psychologist prevails again at the appellate level, the decision might remain unpublished and thereby a hollow victory from the wider point of view of out profession. Even if the decision is published, the psychologist’s financial and emotional costs could render it a Pyrrhic victory. Moreover, even if a favorable appellate decision is published, the term of its impact can be attenuated by the fact that it can subsequently be de—published. It is probably wise to regard litigation as a last resort, since costs are difficult or impossible to control and outcomes are uncertain. An article by Shirley Ann Higuchi, J.D. and Cherie Jones, J.D. in the Spring 1999 issue of the AAP Advance set forth some criteria for selecting cases worthy of litigation. The authors work in the Practice Directorate’s Office of Legal and Regulatory Affairs. This article, entitled, “APA Joins States in Legal Actions Against Managed Care,” stated: Some of the review parameters for determining test case viability include significance for practitioners, legal merits, legal benefits versus costs, and whether alternative strategies could be effective. Other critical considerations are whether the case, if successful, would protect and support quality patient care, set strong legal precedent and have a broad impact on how the health care system or managed care and insurance industries operate and would advance the profession of psychology. Footnote 1In Alan M. Goldstein (Chair), Ethics and laws in conflict, Symposium conducted at the American Psychological Association Convention, San Francisco, August 14, 1998.
Dr. Bodin practices in Palo Alto, CA, where he works with couples, families and individuals, often on relationship concerns. He is board certified in Clinical and in Forensic Psychology (ABPP). He is conducting research on relationship conflict and harmony and has developed the Relationship Conflict Inventory (RCI). He has served as President of the California Psychological Association, APA’s Division of State Psychological Association Affairs, and APA’s Division of Family Psychology, for which he is an APA Council Representative. He also served on the Board of Directors of the Division of Psychologists in Independent Practice. |
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