The concepts of privilege and confidentiality often become confused, and the distinction between them has critical implications for understanding a variety of ethical problems. The concept of privilege (or privileged communication) describes certain specific types of relationships that enjoy protection from disclosure in legal proceedings. In Figure 1, the breadth of this very narrow concept is represented in the smallest circle. Designation of privilege originates in statute or case law and belongs to the client in the relationship. Normal court rules provide that anything relative and material to the issue at hand can and should be admitted as evidence. When privilege exists, however, the client has a degree of protection against having the covered communications revealed without explicit permission. If the client waives this privilege, the clinician must testify on the nature and specifics of the material discussed. The client cannot usually permit a selective or partial waiver. In most courts, once a waiver is given, it covers all of the relevant privileged material.
Confidentiality refers to a general standard of professional conduct that obliges a professional not to discuss information about a client with anyone. In Figure 1, the breadth of the concept is represented in the middle-sized inner circle – narrower than the concept of privacy, but more broad than privilege. Confidentiality may also originate in statutes (i.e., laws enacted by legislatures), administrative law (i.e., regulations promulgated to implement legislation), or case law (i.e., interpretations of laws by courts). But, when cited as an ethical principle, confidentiality implies an explicit contract or promise not to reveal anything about a client except under certain circumstances agreed to by both parties. Although the roots of the concept are in professional ethics rather than in law, the nature of the relationship between client and therapist does have substantial legal recognition (see, for example, ). One can imagine, for example, that clients who believe their confidences have been violated could sue their psychotherapists in a civil action for breach of confidentiality and possibly seek criminal penalties if available under state law. For example, a New York appeals court ruled that a patient may bring a tort action against a psychiatrist who allegedly disclosed confidential information to the patient's spouse, allowing him to seek damages for mental distress, loss of employment, and the deterioration of his marriage (Disclosure of Confidential Information, 1982; , 1982).
The most recent scholarly colloquy on the issue began with Bersoff calling for an end to state statutes enacted after the Tarasoff decision that require therapists to warn the intended victim, police, and/or others when a patient voices serious threats of violence. He argued that such laws may actually interfere with therapy by deterring patients from revealing violent intent, because the therapists will have informed new patients of this exception to confidentiality. As an alternative to laws mandating that therapists disclose such threats, Bersoff suggests “discretion to disclose” (p. 461). He discusses this in terms of sensible options short of violating confidentiality (e.g., seeking consultation, recommending hospitalization, and extending therapy sessions to manage imminent threats). If these fail, the therapist could then opt to disclose (p. 466). Huey (2015) calls this a “Catch-22” situation, noting that any rules undercutting sacrosanct confidentiality create a situation in which the ethical necessity of informed consent has an unintended consequence in that truly open psychotherapy is preceded by informed consent that acts to preclude it. Huey notes that properly informed patients will choose not to reveal imminent suicidal intent, if they are unwilling to be hospitalized. Pedophiles who might consider seeking treatment would have to forgo it or face mandatory reporting, felony conviction, and lifetime public registration.
Resolutionof the situation requires clarification of therapist A’s goals. Do these include helpingthe client through the relapse? Getting therapist B to stop the behavior?Getting therapist B some help? Keeping other clients safe? Decreasing theinstitution’s legal exposure? This is why it’s critical for treatment agenciesto have clear-cut, written ethical guidelines which include detailedinformation for therapists about how to handle this type of situation.
When a client discloses behavior with another person withwhom they are in a fiduciary position, and the therapist believes there is asignificant risk of harming others, we believe it is the therapist’s ethicalduty to describe the behavior to the professional association, licensingagency, or other appropriate body.
Although not all states have specifically enacted laws making malpractice actions an exception to privilege, one must allow defendant therapists to defend themselves by revealing otherwise confidential material about their work together. Likewise, no licensing board or professional association ethics committee could investigate a claim against a mental health practitioner unless the complainant waives any duty of confidentiality that the therapist might owe. In such instances, the waiver by the client of the therapist’s duty of confidentiality or any legal privilege constitutes a prerequisite for full discussion of the case. While some might fear that the threat to reveal an embarrassing confidence would deter clients from reporting or seeking redress from offending therapists, procedural steps can allay this concern. Ethics committees, for example, generally conduct all proceedings in confidential sessions and may offer assurances of privacy to complainants. In malpractice cases, judges can order spectators excluded from the courtroom and place records related to sensitive testimony under seal from the public’s view.
Another ethical dilemma concerning patient confidentialityversus harm to others occurs when the therapist learns of sexual misconduct bya professional. A therapist related,
Patients are capable of designating the direction of their medical care, possessing rights to refuse and accept proposed procedures according to the Patient Self Determination Act of 1990 which mandates patients be given information regarding their rights and abilities to prepare Advance Directives.
We have not disguised or synthesized examples in the next several cases, but rather draw from public legal records that form a portion of the continually growing case law on the duty to warn. The cases themselves do not necessarily bespeak ethical misconduct. Rather, we cite them here to guide readers regarding legal cases that interface with the general principle of confidentiality.
Therefore, the obligation rests on healthcare professionals faced with ethical dilemma in their practice to make moral decision which should promote and enhance health ( Rumbold, 1999; Sim, 1997).
Had the wife been unaware that her husband was a sex addict,the therapist’s course of action would have been more difficult, as she wouldhave had to decide whether to disclose this to the wife. The therapist’sethical decision was made even easier by the wife’s discovery of the man’sFirst Step, so that the wife already had quite a bit of information before sheconsulted the therapist. The therapist’s job then became to help the wifeprocess information she had already learned, in contrast to having to discloseto her.
In some jurisdictions, Dr. Oops would be obligated to respect Mr. Asia's confidentiality because those states do not mandate reporting of past felonies that do not involve child abuse. If the conversation took place in Massachusetts, however, Dr. Oops would be required by law to report Mr. Asia twice. First, Dr. Oops would have to notify the Department of Elder Affairs that Mr. Asia had caused the death of a person he was caring for over the age of 60. Next, he would be obligated to report to another state agency that Mr. Asia had caused the death of a handicapped person. Although every American state and Canadian province has mandatory “child abuse” reporting laws (Kalichman, 1993), not all have statutes mandating the reporting of abuse of so-called “dependent persons.” As a result, mental health professionals have an affirmative ethical obligation to know all applicable exceptions for the jurisdiction in which they practice, and to provide full information on these limits to their clients at the outset of the professional relationship (APA 10: 4.02b).
If a patient refuses to changebehavior that places others at risk for HIV infection or to inform individualsat ongoing risk, or if the psychiatrist has good reason to believe that thepatient has failed to or is unable to cease such behaviors or to inform thoseat risk, it is ethically permissible for the psychiatrist to notifyidentifiable individuals at risk or to arrange for public health authorities todo so. (p. 370).