Lecture 5

Question 1

Confidentiality history

Answer 1

Been with health professions since Hippocrates

Question 2

Survey

Answer 2

1992 Pope, most common ethical dilemmas of APA members: confidentiality, dual relationship issues, payment of services issues. Many will say they have unintentionally violated confidentiality at some point (e.g. leaving files out).

Question 3

Privacy

Answer 3

Comes from US constitution, individual’s right to control access of others to themselves and to information about them (freedom to pick and choose the time, circumstances, and extent to disclose)

Question 4

Confidentiality

Answer 4

A commitment made by a professional to a client that private information will not be divulged to anyone without the client’s written informed consent. Presence of trust correlates positively with treatment outcome. Primarily an ethical requirement (4.01). Often within the licensing law (e.g. AL 34-26-2). Over 30 ethical standards address it. Therefore part of licensing law in most states since it’s in the ethics code. Federal protections - HIPAA, ACA, FERPA, IDEA

Question 5

Dilemmas and Conflicts

Answer 5

Laws, regulations, and policies, e.g. about danger to someone else, 1976 - child abuse prevention and treatment act (mandatory reporting of child abuse). New technologies - lots of security stuff, keeping records - have to keep for certain period of time but also maintain security of them. Preventative practice - proactively consider possible threats, carefully train staff etc., establish appropriate office policies, frequently remind yourself, consult when unsure. Military exceptions - commanding officers can access a mental health file if sending officer to sensitive assignment.

Question 6

Privilege

Answer 6

A legal term - right of a client granted by state law; prevents disclosure during a legal proceeding of information communicated by the client to their MH professional. Client can choose to exercise or waive privilege rights (cannot be waived in part). Privilege only extends to info disclosed in a therapeutic relationship (e.g. not research). This is the client’s choice, therapist does things to protect it. Jaffe v. Redmond (1996 supreme court ruling): Redmond - police officer, arrived at domestic abuse site, killed someone, sought therapy. Jaffee - represented Ricky Allen, supeonaed Jaffee’s mental health records, refused to turn over the records, they were then court ordered. Went to Supreme Court, upheld the privilege to confidentiality - extended to any licensed therapist (not just between psychologist and patients, extended this). On state level - have to do state laws on privilege, the above is for federal level.

Question 7

Exceptions to privilege

Answer 7

Client’s mental condition is raised in court proceedings (e.g. damages), psychological evaluation is court-ordered, client is involuntarily hospitalized by the court, individual is pleading insanity, client presents danger to self or others, suspected child abuse or neglect, breach of duty lawsuit filed by client against the therapist, client’s competency is at issue, child custody case

Question 8

Survey of public’s knowledge regarding psychotherapy

Answer 8

69% believed that confidentiality in psychotherapy was absolute (Miller & Thompson, 1986), so psychologists should not assume clients know. 3.10 4.02.

Question 9

Informed consent

Answer 9

Grew out of medicine/surgery. Canterbury v Spence (1972), Osheroff v. Chestnut Lodge (1989) - legal requirement of telling info. HIPAA specifies notice of privacy in addition to informed consent. Any health care provider who electronically submits protected health information in connection with a transaction related to financial or administrative activities. Essential components of informed consent - competency of the patient (sufficient mind to reasonably understand - with kids, legally authorized person competent to consent), disclosure of material information (costs, risk/benefit, nature of treatment), understanding of these points, voluntary consent (free will). Knowingly, intelligently, and willingly. Document in therapy notes that you received the informed consent. Ongoing process - if you change something, you have to get consent for the changes/modifications of treatment plan.

Question 10

Limits of confidentiality

Answer 10

Relative, not absolute. 4.05 lists exceptions such as harm to others, risk to self

Question 11

Informed consent standards

Answer 11

8.02 research, 9.03 assessment, 10.01 therapy, 3.10 forensic, 7.02 teaching

Question 12

Informed consent autonomy

Answer 12

To help people make responsible and autonomous decisions. Demonstrates respect for a client’s autonomy, emphasizes the client’s role in making decisions, establishes a partnership with the psychologist.

Question 13

Model for ethically protecting confidentiality rights

Answer 13

Prepare (have to know laws and ethics code), tell clients the truth up front, obtain truly informed consent to disclose voluntarily (nature of what you’re doing), respond ethically to legally imposed disclosure situations, avoid the “avoidable” breaches of confidentiality, talk about confidentiality (Fisher, 2008)

Question 14

Mandatory reporting

Answer 14

Legal - depends on the state. Ethical - depends on disclosure in ethics code. Clinical - care of the client, the relationship, trying to maintain that. Risk management - how you can avoid getting sued. You do not have to report past crimes unless child abuse or neglect. Figure out if the wrong person is facing charges, then might have to report. See if there’s anyone else they plan to kill.

Question 15

Suicidal client

Answer 15

Know yourself and where you stand, be aware of cultural and religious attitudes, ethical principles 3.04, 4.01, 4.05b, principle E. Legalities - illegal to encourage suicide, question of foreseeability (could you foresee they will do it - specific plan), assess risk and seek consultation as needed, responsible to clients not for them

Question 16

Tarasoff

Answer 16

UC Berkeley, Poddar- depressed she didn’t like him back, said he’d kill her. Police thought he was rational, denied wanting to hurt anyone. October 1969. Family sued, said psychologist should have told the about Poddar’s plans, court ruled a duty to warn (1974). A Supreme court changed to duty to protect (1976) - can do other things to protect them other than warning them. 30 states have a duty to protect sort of thing, AL doesn’t at all. 1985 - AL Donahue case - similar to WA ruling, saying duty to protect but not law just a case ruling. Depends on the state.

Question 17

Tarasoff ctd.

Answer 17

Pabian et al (2009), 76% of surveyed psychologists were misinformed about state laws regarding duty. Duty explicitly extends to self-harm (4 states), harm to property (4 states), typically MH professionals explicitly immune from civil liability for reasonable attempts to meet duty (but not in 6 mandatory states - no immunity), case law and statutes continuously are evolving - so there is variability across time as well as across jurisdiction. Consulting is good if you have time, more difficult to prove you didn’t meet the duty if you consulted, document this stuff. Extension to not identified victim too…

Question 18

Who is the client?

Answer 18

The party to whom you have a primary responsibility - an individual, a group of people, an organization. Ethical standard 3.07. The person you are seeing is the client unless a court order takes away right to confidentiality, informed consent, access to records, etc.

Question 19

Children and confidentiality

Answer 19

14 or over can voluntarily seek treatment and considered an adult (Alabama). This does not address releasing records to parents. Consider: relevant state law, presenting problem, concerns of the parents, needs/desires of the child, age, cognitive capacity. Parents have right to get records for under 14, have to consider harm to the child - also not on law some places. Being clear with confidentiality ahead of time.

Question 20

Marital and Family Therapy

Answer 20

10.02. Establish clear rules at the beginning, inform everyone, and document. Several positions clinician can take - no secrets, treat each person as though it’s individual therapy, accept confidences only with understanding that you will help them reveal to other family members

Question 21

Death and Confidentiality

Answer 21

Anne Sexton death 1967. Daughter wants therapy records. The legal representative of estate often has rights to records once client is dead. Many people outraged the daughter was given access, but nothing prevented it. Most don’t know this. Ethics code doesn’t say what to do here.

Question 22

Writing about clients

Answer 22

Disguising client identity - threats to the validity of the information, risk of client identifying him or herself. Might not be true consent if current client feels pressure to let it happen. Might change approach to client based on agreement or not. Would client feel exploited? Treatment is just for the therapist?