ArticlePDF Available

Confidentiality in Therapeutic Relationships: The Need to Develop Comprehensive Guidelines for Mental Health Professionals

Authors:

Abstract

This article explores the current ethical and legal standards concerning confidentiality in therapeutic relationships. It examines the existing literature concerning mental health professionals' experiences and attitudes towards confidentiality as well as patients' expectations. It argues that the existing standards are complex and confusing. It is suggested that there is a real need for comprehensive guidelines as to the circumstances in which confidentiality may be breached in order to help mental health professionals provide the best possible health care to their patients. The article outlines the methodology of a project funded by the Australian Research Council which aims to provide comprehensive guidelines for mental health professionals in this area.
Faculty of Law, Monash University
Research Paper No 2006/39
Date 22nd February 2008
Confidentiality in Therapeutic Relationships: The Need to Develop
Comprehensive Guidelines for Mental Health Professionals
Annegret Kämpf and Bernadette McSherry
This paper can be downloaded without charge from the
Social Science Research Network electronic library at:
http://ssrn.com/abstract= 1096420
www.law.monash.edu.au
124 PSYCHIATRY, PSYCHOLOGY AND LAW
VOLUME 13 NUMBER 1 2006 pp. 124–131
Correspondence to: Professor Bernadette McSherry, Faculty of Law, Building 12, Monash University, Clayton VIC 3800, Australia.
E-mail: Bernadette.McSherry@law.monash.edu.au
Confidentiality in Therapeutic
Relationships: The Need to Develop
Comprehensive Guidelines for
Mental Health Professionals
Annegret Kämpf and Bernadette McSherry
Monash University, Australia
T
his article explores the current ethical and legal standards concerning confidentiality in therapeutic relation-
ships. It examines the existing literature concerning mental health professionals’ experiences and attitudes
towards confidentiality as well as patients’ expectations. It argues that the existing standards are complex and
confusing. It is suggested that there is a real need for comprehensive guidelines as to the circumstances in which
confidentiality may be breached in order to help mental health professionals provide the best possible health care
to their patients. The article outlines the methodology of a project funded by the Australian Research Council which
aims to provide comprehensive guidelines for mental health professionals in this area.
Mental health professionals are confronted with a
wide range of ethical and legal issues concerning
confidentiality in therapeutic relationships. Their
practice frequently intersects with other disciplines,
which can lead to conflicts in maintaining confi-
dentiality. For example, from the criminal justice
perspective, questions may arise as to whether
mental health professionals can maintain the confi-
dentiality of patient information or whether they
must comply with police or court requests for access
to health records or reports. A related issue is
whether mental health professionals should breach
confidentiality in relation to patients they consider
at risk of harming themselves or others.
Mental health professionals also need to know
the limits of confidentiality when the disclosure of
information is needed for purposes such as research,
the administration of health care organisations,
working within a treatment team or in relation to
medical insurance. The difficulty in dealing with
matters of confidentiality lies not only in determin-
ing in what circumstances sensitive information
might be disclosed, but also in deciding to whom
information must be disclosed and how much of it
may be revealed.
Determining when to breach confidentiality is
particularly difficult when the public interest is
involved. A frequently discussed example is the
dilemma of mental health professionals deciding
whether to disclose information in order to warn
victims or authorities where there is a risk of a
patient harming others. If mental health profession-
als breach confidentiality contrary to ethical or legal
principles, the consequences can be severe. Mental
125
CONFIDENTIALITY IN THERAPEUTIC RELATIONSHIPS
health professionals run the risk of being sanctioned
by a professional body and they may face legal
consequences such as a claim for negligence, breach
of contract or breach of confidence.
From the perspective of patients, the disclosure
of sensitive personal information may have adverse
social consequences. Patients who fear that their
personal information will be revealed may be reluc-
tant to disclose certain information, despite
openness being essential for effective diagnosis and
treatment in mental health care.1
This article argues that currently, mental
health professionals do not have sufficient
guidance as to how to balance the protection of
confidentiality and the disclosure of information.
It looks at the overall ethical framework for the
protection of confidentiality, including current
provisions in the relevant codes of ethics and the
complex interplay of recent Australian law in this
area. It then outlines the methodology of a project
funded by the Australian Research Council which
aims to provide comprehensive guidelines for
mental health professionals in this area.
The Ethical Framework
Confidentiality is generally regarded as funda-
mental to therapeutic relationships. There are
differing schools of moral philosophy that aim to
establish standards of conduct that indicate how
individuals should behave in certain circum-
stances and the following is a necessarily brief
outline of how these different schools approach
the need to maintain confidentiality.
Utilitarianism
Utilitarianism focuses on the consequences of actions
and emphasises that the ‘right’ action is the one that
produces the most intrinsic good for the majority of
those affected.
2
From this perspective, the protection
of confidentiality in therapeutic relationships can be
justified on the basis that it provides the greatest
positive outcome for the greatest number of people.
The positive outcome can be viewed as a high
standard of health care brought about by open
communication. If confidentiality is not preserved,
many patients may not disclose essential information
to their mental health professionals thus seriously
damaging therapeutic relationships.
3
Deontology
Instead of focusing on the consequences of
actions, deontological theories are based on the
notion that actions can be evaluated in and of
themselves. It can thus be argued that maintaining
confidentiality is worth protecting as an intrinsically
right action. Regardless of whether a breach in
confidentiality results in bad consequences,
deontology promotes keeping confidentiality as a
universal moral obligation. Even for a good cause, it
can be argued that it should not be morally permis-
sible to undermine an intrinsically right action
because this would threaten the concept of univer-
sal moral obligations. Thus, the relationship
between health care professional and patient should
be based on the premise that every communication
will be kept confidential; otherwise the concept of
confidentiality would be severely impaired.4
Moral Values
Another approach emphasising the protection of
confidentiality focuses on it serving the basic values
of common morality: autonomy, beneficence, non-
maleficence and justice.5For example, maintaining
confidentiality can be seen as respecting the individ-
ual’s right to autonomy. The principle of autonomy
or self-determination is a cornerstone of contempo-
rary moral philosophy. It emphasises the idea that
individuals have an intrinsic right to control their
lives. The right to autonomy encompasses the
individual’s right to determine who owns and uses
his or her personal information. Thus, patients
should have the right to make their own decisions
about their health and they alone, rather than
anyone else, should have the right to decide whether
to disclose information.6
These three approaches can be used to support
the importance of maintaining confidentiality in
therapeutic relationships and they are frequently
used in conjunction.7However, the next section
dealing with codes of ethics makes it clear that in
practical terms, confidentiality is not absolute, but
needs to be balanced against the notion of the
‘public interest’. When considering the principle
of confidentiality, the deontological approach
makes the greatest demands on the justification of
the disclosure of sensitive information in the
public interest. 8
Codes of Ethics
There are a number of ethical provisions dealing
with confidentiality in therapeutic relationships.9
The Australian Medical Association’s (AMA)
Code of Ethics (2004) states that exceptions to
maintaining confidentiality have to be taken ‘very
126
ANNEGRET KÄMPF AND BERNADETTE McSHERRY
seriously’.10 They may be allowed ‘where there is a
serious risk to the patient or another person,
where required by law, where part of approved
research, or where there are overwhelming socie-
tal interests’.11 However, the code does not
provide examples of what constitutes such
overwhelming societal interests.
More specifically, the Royal Australian and
New Zealand College of Psychiatrists’ (RANZCP)
Code of Ethics (2004) provides that ‘psychiatrists
shall strive to maintain patient confidentiality’ and
further specifies how to achieve this.12 It recognises
that ‘confidentiality cannot be absolute’13 and that
any breach requires a careful balance of conflicting
interests.14 Among other specifications, it permits
disclosure if a patient intends to harm an identi-
fied person or persons, and it acknowledges an
overriding duty to inform victims or relevant
authorities.15 The code also requires that patients
be informed of the limits of confidentiality as part
of the process of obtaining consent, that psychia-
trists be able to justify any breaches in confiden-
tiality and that psychiatrists question the need for
disclosure or argue for only limited disclosure in
legal proceedings.16
General Principle III (a) of the Australian
Psychological Society’s (APS) Code of Ethics
(2003) also sets out the limits to confidentiality.
The APS code states that confidential information
can be disclosed where the patient or the patient’s
legal representative consents or if there is a clear
risk to the patient or others.17 In the latter case, the
disclosure has to be restricted to the least amount
of information that is necessary to avert the risk.
Section B6 states that members of the APS ‘must
not disclose information about criminal acts of a
client unless there is an overriding legal obligation
to do so or when failure to disclose may result in
clear risk to themselves or others’.18
The APS’s Guidelines on Confidentiality
(Including When Working With Minors) (1999)
clarify and amplify the Code of Ethics. These guide-
lines state that confidentiality is fundamental to
professional practice, yet not absolute.19 One of
the acknowledged limits to confidentiality is ‘the
duty to warn or the duty to protect or care for the
client and others’.20 The APS’s Guidelines Relating
to Suicidal Clients (1998) emphasise the degree of
urgency and risk and the psychologist’s knowledge
of the patient’s situation and the relationships
concerned in weighing up whether to breach
confidentiality. Guideline 2(b) recommends
breaching confidentiality only if ‘there is a high
risk that suicide might be attempted by means that
place others at risk’.21
The APS’s system of providing specific guide-
lines has the advantage of providing a detailed
interpretation of general principles. Its Guidelines
Relating to Suicidal Clients specifically name
certain kinds of risk (the risk of arson, motor
accident or family homicide) that justify a breach
of confidentiality.
In summary, the relevant codes of ethics for
mental health professionals allow breaches of confi-
dentiality, though with varying clarity as to the
extent to which this should occur. Most of them
refer to general principles and do not give concrete
examples. All the codes refer to the notion that any
ethical duty must not involve purposely breaking
the law. Thus, there is an interplay between ethics
and law and mental health professionals need to be
informed about current legal requirements for
disclosure.
The Legal Framework
There is a range of legislation touching on the
subject of confidentiality.22 The Privacy Act 1988
(Cth) establishes the legal obligation for employees
to keep records confidential. It distinguishes
between the Information Privacy Principles (IPP)
that apply to the public sector and the National
Privacy Principles (NPP) that apply to the private
sector. Both sets of principles contain the idea that
personal information can be disclosed without the
consent of the individual concerned if the disclo-
sure is necessary to prevent or lessen a serious and
imminent threat to the life or health of the individ-
ual concerned or of another person.23 The NPP’s
provision on the use and disclosure of information
however, does not impose duties to disclose infor-
mation. It explicitly states that ‘an organisation is
always entitled not to disclose personal information
in the absence of a legal obligation to disclose it’.24
The Privacy Act covers health care information,
but is not focused on it. It therefore does not
contain specific guidance to health care profession-
als and the Privacy Act’s two distinctive schemes of
handling health information in the private and
public sector can be confusing.25
Provisions setting out a legal duty to breach
confidentiality can be found in state and territory
legislation. These provisions are often very diffi-
cult for mental health professionals to find, let
alone keep track of. In Victoria, for example,
127
CONFIDENTIALITY IN THERAPEUTIC RELATIONSHIPS
health care professionals have a legal duty to report
child abuse.26 According to the Road Safety Act
1986 (Vic) health care professionals are protected
from liability for breaches of confidentiality when
they reveal information that suggests or discloses
unfitness to drive.27 Further relevant provisions
can be found in the Mental Health Act 1986
(Vic),28 the Cancer Act 1958 (Vic),29 the Evidence
Act 1958 (Vic),30 the Health Records Act 2001
(Vic),31 the Health Services Act 1988 (Vic),32 the
Health Services (Conciliation and Review) Act 1987
(Vic),33 and the Health Services (Governance and
Accountability) Act 2004 (Vic).34
The most relevant provision relating to confi-
dentiality in therapeutic relationships in Victoria is
s120A of the Mental Health Act 1986 (Vic). This
is an extraordinarily complex provision. It states
that a mental health professional must not give to
any person information acquired from a patient.35
However, there are numerous exceptions to the
general rule and these exceptions consist of refer-
ences to other Acts. While it may be possible to
follow references to specific provisions in other
Acts, there is a general reference to ‘any other Acts’
which requires extensive knowledge of the law.
As well as this wealth of legislative provisions,
the common law (judge made law) also refers to
certain instances as to when confidentiality in
mental health care may be breached. In R v Lowe36
the question arose before the Court of Appeal of the
Supreme Court of Victoria as to whether informa-
tion from psychotherapy sessions could be excluded
from evidence, based on the principle that sensitive
health care information is confidential. The court
unanimously held that confidentiality is not
absolute. It stated that ‘it is clear that both common
law and statute law subordinate private confidence
to the wider public interest; at least when it comes
to disclosing information in the interests of prose-
cuting serious crime and/or protecting public
safety’.37 The serious crime in this case was the
kidnapping and killing of a 6-year-old child. It
further stated that ‘(t)here is an emerging view that
a duty of disclosure exists’.38
Lowe’s case touched on two distinct issues:
whether mental health professionals have a privilege
in court proceedings to withhold personal informa-
tion and whether they might be liable to identifiable
victims for not disclosing information relating to
patients thought to be at risk of harming others.
However, both matters were not finally settled. The
psychotherapist in this case was not a qualified
psychologist and it is possible that different issues
could be raised in cases where qualified profession-
als are involved.39
In Kadian v Richards40 the Supreme Court of
New South Wales considered the question as to
whether patients could waive a right of confiden-
tiality. Justice Campbell examined a doctor’s duty
to protect confidential information and held that:
[A] doctor is under a duty not to voluntarily
disclose, without the consent of his or her
patient, information which the doctor has
gained in his or her professional capacity save in
very exceptional circumstances. Those ‘very
exceptional circumstances’ include circum-
stances where the information which the doctor
obtains is information which, if not disclosed,
could endanger the lives or health of others,
where the information which the doctor gains
in the relationship is information concerning a
dishonesty or other ‘iniquity’ inherently
incapable of being the subject matter of an
obligation of confidence, where the informa-
tion is acquired in the course of an actual or
reasonably apprehended breach of the criminal
law or where statute requires certain types of
information to be disclosed.41
Justice Campbell also stated that the ‘public inter-
est is best served by not interfering with the obliga-
tion of confidence owed to the plaintiff by [the
treating doctor]’.42
In The Royal Women’s Hospital v Medical
Practitioners Board of Victoria43 Gillard J consid-
ered the doctor-patient privilege and confidential-
ity. He commented that:
[T]he confidential [doctor–patient] relation-
ship … will not withstand the law compelling
disclosure such as an obligation to give evidence
as a witness, the production of documents
pursuant to discovery of subpoena or the reach
of a search warrant. The confidential relation-
ship must give way to compulsion imposed by
law to give evidence or to provide documents.
It follows that at common law a doctor could
not refuse to answer questions in court because
of any obligation of confidentiality. Equally a
doctor could not refuse to comply with the
demands of a search warrant to produce
documents on the ground of confidentiality.44
These cases indicate that the common law is devel-
oping exceptions to the general need to preserve
confidentiality in therapeutic relationships, but
the scope of these exceptions remains unclear. The
common law can only develop on a case-by-case
128
ANNEGRET KÄMPF AND BERNADETTE McSHERRY
basis and, in the absence of a definitive ruling by
the High Court, the boundaries of confidentiality
will remain unclear.
At present, relevant duties to breach confiden-
tiality are contained in many different Acts which
can easily lead to confusion for lawyers trained in
accessing and understanding the law, let alone
mental health professionals. In the common law,
many questions concerning confidentiality in
therapeutic relationships remain open. In particu-
lar, the scope of any common law public interest
exception to confidentiality remains unclear.45
Mental Health Professionals’
and Patients’ Experiences
and Expectations
While both ethical and legal frameworks provide
some guidance for clinical practice, the existing
standards are complex and confusing. Mental health
professionals are expected to have an understanding
of legal requirements found in numerous Acts and
common law rulings. It is little wonder that mental
health professionals may feel anxious when deter-
mining whether there is a duty to breach confiden-
tiality or a duty to maintain confidentiality.
4
6
Past studies have already provided some
knowledge of mental health professionals’ experi-
ences and expectations relating to confidentiality. A
1990 study conducted by Totten, Lamb and Reeder
found that therapists were likely to breach confi-
dentiality in situations of potential risk of harm to
others, and when considering whether to breach
confidentiality, therapists considered the degree of
dangerousness and identifiability of the victim.47
Rosenhan, Teitelbaum, Teitelbaum and Davidson
suggest that the percentage of therapists who
believed confidentiality should be breached when
dealing with potentially ‘dangerous’ patients tripled
between 1978 and 1993.48 When considering
whether to breach confidentiality, other studies
have indicated that the imminence of the danger49
and clinical experience50 are important factors in
deciding whether to breach confidentiality.
In Australia, McMahon and Knowles surveyed
psychologists engaged in counselling and/or clini-
cal work in 1995. They found that 83% of the
respondents ‘believed that confidentiality in the
relationship with the client was important, but
could be breached in some circumstances’,51 while
15% of the respondents thought ‘it was essential
and could never be breached’.52 A further study in
1997 by McMahon and Knowles found that 87%
of psychiatrists and 54% of psychologists had
experience dealing with ‘dangerous’ patients and
that 38% of psychologists and 74% of psychiatrists
had at some stage given a warning about a patient.53
McMahon and Knowles stated in 1997:
While much American research on the danger-
ous client has focused on clients who have
committed a criminal offence, in this study
psychotherapists selected the client they would
describe as dangerous. When given this oppor-
tunity it was clear that they used the term
‘dangerous’ very broadly to cover a wide range
of anticipated physical harm and were more
expansive than the American psychiatrists
surveyed by Beck (1982) …54
In 2005, a study by Bartholomew and Carvalho
explored Victorian medical practitioners’ attitudes
to breaching confidentiality in relation to a
scenario of a minor requesting the oral contracep-
tive pill.55 Ninety-one per cent of the study’s
respondents would have maintained the minor’s
confidentiality, although this decision was based
on significantly differing rationales. When asked
about their legal knowledge concerning confiden-
tiality requirements, only 3% of the respondents
in this study felt ‘very well informed’.56 Thirty-two
per cent of respondents felt ‘adequately informed’,
while almost two thirds felt ‘unsure’ (38%),
‘inadequately informed’ (22%), or ‘not at all
informed’ (5%).57
A number of studies examining patients’ views
on confidentiality suggest that there is a gap
between patients’ and mental health care profes-
sionals’ attitudes in this area. A 1982 study by
Shuman and Weiner suggested that 96% of psychi-
atric patients relied on ethics to guarantee privacy of
communication.58 Fifty-four per cent of them
found that confidentiality was a concern for them
when they began therapy.59 Schmid, Appelbaum,
Roth and Lidz found that 80% of psychiatric
inpatients said an assurance of confidentiality
improved their relationship with staff, and 77%
said that they would be upset or angry if confiden-
tial information was released verbally without
permission.60 The expectation that confidentiality is
absolute is high. Miller and Thelen found that 96%
of high school students and undergraduate psychol-
ogy students, former patients of community mental
health centres and former patients of a university
counselling centre believed that psychologists
considered everything discussed in the course of
129
CONFIDENTIALITY IN THERAPEUTIC RELATIONSHIPS
psychotherapy confidential.61 Collins and Knowles,
in a study of adolescents’ and adults’ views on
confidentiality, found that participants ‘strongly
desire[d] respect for their autonomy’62 and 98%
considered that ‘absolute confidentiality [was]
either essential or important’.63 This discrepancy
between patients’ expectations and the ethical and
legally permissible limits of confidentiality is of
concern. Paterson and Mulligan write:
What is critical is that the expectations of
patients and treating professionals should be
aligned. Unless this is achieved, patients will
continue to be offended by, and possibly seek
avenues for redress following, information
disclosures which treating practitioners consider
to be innocuous or merely routine.64
The Australian Research
Council Project
The authors and Professor James Ogloff of the
Victorian Institute of Forensic Mental Health,
together with partner investigators, Dr John
Crichton and Dr Lindsay Thomson in Scotland
and Professor Thomas Hadjistavropoulos in
Canada have been awarded a grant from the
Australian Research Council to develop compre-
hensive guidelines on confidentiality in therapeu-
tic relationships in mental health care.
The project aims to ascertain mental health
professionals’ current understanding of their
ethical and legal obligations regarding confiden-
tiality as a basis for the development of broad
guidelines for those working in this area. It will
examine strengths and gaps in knowledge and
attitudes towards matters of confidentiality. To
date, most of the research that has been conducted
on confidentiality and guidelines that have been
developed have come from other countries, partic-
ularly the United States. There is an urgent need
for Australian guidelines to be developed.
A comparative analysis of confidentiality provi-
sions in Australia, Canada and Scotland will also be
undertaken in order to provide a fundamental
background for the development of these guidelines.
While confidentiality is treated as ethically important
in all three countries, the differences in legislation
and case law in relation to breaching confidentiality
will provide an interesting background in consider-
ing law reform recommendations
.
The project will be based on multidisciplinary
work, involving both legal and mental health
professionals with the aim of integrating legal,
ethical, and professional perspectives. The project
will also be instrumental in better informing
patients of their rights upon entering the thera-
peutic relationship within a context where studies
suggest confidentiality is not only expected but
strongly supported as an obligation.
In the first stage of the project, a questionnaire
will be sent to mental health professionals in order
to examine their knowledge, experience and expec-
tations of ethical and legal obligations concerning
confidentiality. This will indicate training needs
and increase the understanding of vulnerabilities,
strengths and gaps in knowledge and attitudes.
The responses will provide a basis for recommen-
dations for law reform as well as the development
of guidelines.
Based on the results of this questionnaire, the
second stage will use focus groups of mental health
professionals to identify the factors that may lead
to the disclosure of confidential information.
These focus groups will take place during the 3rd
International Congress of Psychology and Law in
conjunction with the 27th Annual Congress of
ANZAPPL to be held from the 3rd to the 8th July
2007 in Adelaide.65
The final stage of the project in 2008 will
involve the cooperation of a group of leading
professionals across Australia. A number of experts
from the disciplines of psychiatry, psychology and
mental health law will be asked to comment on a
series of scenarios involving issues of confidential-
ity. Based on the experts’ responses, a document
on ethical standards will be developed. The guide-
lines will provide mental health professionals with
direction as to when to breach confidentiality or
not in certain situations. It is hoped that they will
function as an educational tool to ensure that
mental health professionals’ duties are clarified
and patients’ rights to confidentiality are respected
as much as possible.
Conclusion
The ethical and legal frameworks for the protection
of confidentiality offer some guidance for mental
health professionals regarding whether or not to
breach confidentiality in certain circumstances.
However, ethical principles and codes of ethics are,
of necessity, very general and may not provide
enough information for mental health professionals
faced with a specific situation where there is a
conflict between preserving confidentiality and
130
ANNEGRET KÄMPF AND BERNADETTE McSHERRY
breaching it. The law in this area is diverse, difficult
to track down and often confusing.
The Australian Research Council project
provides an opportunity for the development of
comprehensive guidelines for mental health profes-
sionals in this area. It is hoped that through the
input of mental health and legal professionals, the
investigators can work toward greater clarity and
precision in this complex area for the benefit of
both mental health professionals and their patients.
Endnotes
1 Kottow MH, ‘Stringent and Predictable Medical
Confidentiality’ in Gillon R (ed), Principles of
Health Care Ethics (John Wiley & Sons Ltd, 1994)
p 471 ff.; Kuhse H, ‘The AMA’s New Code of
Ethics–A Wise Formulation?’ (1996) 15 Monash
Bioeth Rev 1 at 2.
2 Bentham J, An Introduction to the Principles of
Morals and Legislation (Clarendon Press, 1823);
Mill JS, ‘Utilitarianism’ in Robson JM (ed), The
Collected Works of John Stuart Mill (University of
Toronto Press, 1969), referring to greater pleasure
and happiness.
3 Appelbaum PS, Kapen G, Walters B, Lidz C and
Roth LH, ‘Confidentiality: An Empirical Test of
the Utilitarian Perspective’ (1984) 12 Bull Am
Acad Psychiatry Law 109 at 109.
4 Michalowski S, Medical Confidentiality and Crime
(Ashgate, 2003) p 9.
5 Beauchamp T and Childress J, Principles of
Biomedical Ethics (5th ed, Oxford University Press,
2001).
6 Kottow, n 1, p 474 f.
7 e.g. McMahon M, ‘The Ritual of Confidentiality’
in Freckelton I and Peterson K (eds), Controversies
in Health Law (Federation Press, 1999) p 142;
Michalowski, n 4, p 19.
8 Michalowski, n 4, p 31.
9 The discussion will be restricted to codes of ethics
with relevance to general or mental health care.
10 AMA’s Code of Ethics (2004), Principle 1.1.1.
11 AMA’s Code of Ethics (2004), Principle 1.1.1.
12 RANZCP’s Code of Ethics (2004), Principle 4.
13 RANZCP’s Code of Ethics (2004), Principle 4.5.
14 RANZCP’s Code of Ethics (2004), Principle 4.5.
15 RANZCP’s Code of Ethics (2004), Principle 4.6.
16 RANZCP’s Code of Ethics (2004), Principles 4.7,
4.10, and 4.8.
17 APS’s Code of Ethics (2003), General Principle III
(a) and ss B 6.
18 APS’s Code of Ethics (2003), s B 6.
19 APS’s Guidelines on Confidentiality (including
when Working with Minors) (1999), Preamble,
Paragraphs 1 and 4.
20 APS’s Guidelines on Confidentiality (including
when Working with Minors) (1999), Preamble,
Paragraph 7.
21 APS’s Guidelines Relating to Suicidal Clients
(1998), Guiding Principle 2 (b).
22 For further information see Mendelson D, ‘Travels
of a Medical Record and the Myth of Privacy’
(2003) 11 JLM 136 at 139.
23 Privacy Act 1988 (Cth), IPP Principle 11.1 (c) and
NPP Schedule 3.2.1 (e)(i) (also including the crite-
rion of ‘safety’).
24 Privacy Act 1988 (Cth), NPP Schedule 3.2.1, Note
2.
25 Office of the Privacy Commissioner, Getting in on
the Act: The Review of the Private Sector Provisions of
the Privacy Act 1988 (Australian Government,
2005) p 64 ff.
26 Children and Young Persons Act 1989 (Vic), s 64
(1C1A).
27 Road Safety Act 1986 (Vic), s 27(5); further condi-
tions apply.
28 Mental Health Act 1986 (Vic), s 120A.
29 Cancer Act 1958 (Vic), ss 59 ff.
30 Evidence Act 1958 (Vic), ss 21M, 32B ff.
31 Health Records Act 2001 (Vic), ss 25 ff.
32 Health Services Act 1988 (Vic), s 18E.
33 Health Services (Conciliation and Review) Act 1987
(Vic), s 32.
34 Health Services (Governance and Accountability) Act
2004 (Vic), ss 19, 63D.
35 Mental Health Act 1986 (Vic), s 120A.
36 R v Lowe [1997] 2VR 465.
37 R v Lowe [1997] 2VR 465 at 485.
38 R v Lowe [1997] 2VR 465 at 485.
39 McMahon M, ‘Confidentiality and Disclosure of
Crime-Related Information’ (1998) 20 In-Psych
12 at 19.
40 Kadian v Richards [2004] NSWSC 382, affirmed
by Richards v Kadian [2005] NSWCA 328.
41 Kadian v Richards [2004] NSWSC 382 at 44.
References Omitted.
42 Kadian v Richards [2004] NSWSC 382 at 44.
43 Royal Women’s Hospital v Medical Practitioners
Board of Victoria [2005] VSC 225.
44 Royal Women’s Hospital v Medical Practitioners
Board of Victoria [2005] VSC 225 at 20 and 21.
References Omitted.
45
McSherry B, ‘Confidential Communications
Between Clients and Mental Health Care
Professionals: The Public Interest Exception’
(2002) 37 Ir Jur 269; McSherry B, ‘Confidentiality
131
CONFIDENTIALITY IN THERAPEUTIC RELATIONSHIPS
of Psychiatric and Psychological Communications:
The Public Interest Exception’ (2001) 8 PPL 12 at
12.
46 Shapiro DL, ‘Professional and Legal Responsibilities
of the Therapist Confronted with Potential Violent
Behavior in a Patient’ in Hertzberg LJ (ed), Violent
Behavior Vol. I: Assessments and Intervention (PMA
Publishing Corp., 1990) p 289 ff.
47 Totten G, Lamb DH and Reeder GD, ‘Tarasoff and
Confidentiality in AIDS-Related Psychotherapy’
(1990) 21 Prof Psychol-Res Pr 155 at 158.
48 Rosenhan DL, Teitelbaum TW, Teitelbaum KW
and Davidson M, ‘Warning Third Parties: The
Ripple Effects of Tarasoff’ (1993) 24 Pac LJ 1165
at 1232; See also Wise TP, ‘Where the Public Peril
Begins: A Survey of Psychotherapists to Determine
the Effects of Tarasoff’ (1978) 31 Stan L Rev 165.
49 McGuire J, Nieri D, Abbott D, Sheridan K and
Fisher R, ‘Do Tarasoff Principles Apply in AIDS-
Related Psychotherapy? Ethical Decision Making
and the Role of Therapist Homophobia and
Perceived Client Dangerousness’ (1995) 26 Prof
Psychol-Res Pr 608 at 610.
50 Botkin DJ and Nietzel MT, ‘How Therapists
Manage Potentially Dangerous Clients: Toward a
Standard of Care for Psychiatrists’ (1987) 18 Prof
Psychol-Res Pr 84 at 86.
51 McMahon M and Knowles AD, ‘Confidentiality in
Psychological Practice: A Decrepit Concept?’
(1995) 30 Aust Psychol 164 at 165.
52 McMahon and Knowles, n 51, at 165.
53 McMahon M and Knowles A, ‘Psychologists’ and
Psychiatrists’ Perceptions of the Dangerous Client’
(1997) 4 PPL 207 at 212.
54 McMahon and Knowles, n 53, at 213.
55 Bartholomew TP and Carvalho T, ‘General
Practitioners’ Competence and Confidentiality
Determinations with a Minor who Requests the
Oral Contraceptive Pill’ (2005) 13 JLM 191 at 197.
56 Bartholomew and Carvalho, n 55, at 195.
57 Bartholomew and Carvalho, n 55, at 195.
58 Shuman DW and Weiner MS, ‘The Privilege
Study: An Empirical Examination of the
Psychotherapist-Patient Privilege’ (1982) 60 NC L
Rev 893 at 932.
59 Shuman and Weiner, n 58, at 931 ff.
60 Schmid D, Appelbaum PS, Roth LH and Lidz C,
‘Confidentiality in Psychiatry: A Study of Patients’
Views’ (1983) 34 Hosp Community Psych 353 at
353 ff.
61 Miller DJ and Thelen MH, ‘Knowledge and Beliefs
About Confidentiality in Psychotherapy’ (1986) 17
Prof Psychol-Res Pr 15 at 15.
62 Collins N and Knowles AD, ‘Adolescents’ Attitudes
Towards Confidentiality Between the School
Counsellor and the Adolescent Client’ (1995) 30
Aust Psychol 179 at 182.
63 Collins and Knowles, n 62, at 181.
64 Paterson M and Mulligan E, ‘Disclosing Health
Information Breaches of Confidence, Privacy and
the Notion of the ‘Treating Team’’ (2003) 10 JLM
460 at 469.
65 For details of the conference see: http://
www.sapmea.asn.au/conventions/psychlaw2007/
index.html
... Nurses routinely collect or access personal information to ensure each patient receives appropriate care (Kämpf & McSherry, 2006). However, this information may be sensitive, or have the potential to lead to negative repercussions for a patient (Barloon & Hilliard, 2016). ...
... There is a public interest in protecting the confidentiality of patient information, as patients may be otherwise reluctant to share essential health information with clinicians (Kämpf & McSherry, 2006). Notably, the concept of 'public interest' is not defined in law or literature (Conlon et al., 2019). ...
... The inappropriate disclosure of personal information may have negative repercussions for patients, and nurses may face disciplinary action if confidentiality is breached (Kämpf & McSherry, 2006). Furthermore, rules of confidentiality differ from one jurisdiction to another, and between different professions (Mason, Worsley, & Coyle, 2010;NSW Health, 2015;Nursing and Midwifery Board of Australia, 2018). ...
Article
Background Nurses working in mental health routinely face difficult decisions regarding confidentiality and disclosure of patient information. There is public interest in protecting patient confidentiality, and there is a competing public interest in disclosing relevant confidential information to protect the patient or others from harm. However, inappropriate disclosures may constitute a breach of confidentiality. Despite the gravity of this situation, there is a paucity of literature to guide nurses’ decision-making processes regarding confidentiality and disclosure. Aim To examine decision-making processes of a nurse working in mental health, regarding disclosure of personal health information of a patient assessed as posing a risk. Methods Qualitative interpretivist approach using thematic analysis of data derived from an instrumental case study of NK v Northern Sydney Central Coast Area Health Service 2010, a Civil and Administrative Tribunal matter in New South Wales, Australia. Findings Three important legal concerns relevant to nurses’ decision-making processes are illuminated. Firstly, for risk assessment there was an emphasis on a static notion of dangerousness. Secondly, rules of confidentiality and disclosure were not adequately observed. Thirdly, confidential information was disclosed without valid justification. Discussion Inappropriate decision-making processes that may lead to a breach of patient confidentiality were evident in the findings. Gaps in understanding nurses’ decision-making processes pertaining to confidentiality and disclosure of patient information that may be addressed by future research were also revealed. Conclusion Future research that addresses gaps in understanding nurses’ decision-making processes identified by this instrumental case study would provide greater guidance for nurses when making decisions regarding confidentiality and disclosure related to risk.
... The Mental Health Acts of all Australian States and Territories also generally protect confidentiality in the mental health field (Kämpf & McSherry, 2006). Their application and limitations vary depending on the kind and scope of services they cover, their precise formulation and the context in which they address matters of confidentiality. ...
... Further studies have analysed research findings on attitudes and experiences with confidentiality in health care (e.g., Kämpf & McSherry, 2006;Mulligan & Braunack-Mayer, 2004). US research findings suggest that mental health professionals have become more likely to breach confidentiality in the years between 1978 and 1993 (Rosenhan, Teitelbaum, Teitelbaum, & Davidson, 1993). ...
Full-text available
Article
This paper outlines the legal and ethical duties of psychologists in relation to preserving as well as breaching confidentiality in therapeutic relationships. It analyses the results of a questionnaire examining psychologists' perceptions of the legal and ethical constraints on confidentiality and their likelihood of breaching confidentiality in different situations. The vast majority of participants indicated that the law permits them to disclose confidential information and that there is an ethical duty to disclose information to a third party when the patient is perceived to be dangerous. The results suggest that there is some uncertainty as to when confidentiality should be breached in practice and it is argued that the law is overly complex in this area and that guidelines are needed to assist psychologists in their clinical practice.
... safeguarding confidentiality to ensure patients are willing to share their personal health information with nurses, but there is an opposing public interest in disclosure of pertinent information to protect patients or others from harm (Conlon et al., 2019;Kämpf & McSherry, 2006;McHale, 2009). Nurses are often the first clinician to make contact with a patient engaging in mental health services, so may be the first clinician to recognise when disclosure of confidential information is recommended (Conlon et al., 2019). ...
Article
Nurses practising in mental health are faced with challenging decisions concerning confidentiality if a patient is deemed a potential risk to self or others, because releasing pertinent information pertaining to the patient may be necessary to circumvent harm. However, decisions to withhold or disclose confidential information that are inappropriately made may lead to adverse outcomes for stakeholders, including nurses and their patients. Nonetheless, there is a dearth of contemporary research literature to advise nurses in these circumstances. Cognitive Continuum Theory presents a single-system intuitive-analytical approach to examining and understanding nurse cognition, analogous to the recommended single-system approach to decision-making in mental health known as structured clinical judgement. Both approaches incorporate cognitive poles of wholly intuition and analysis and a dynamic continuum characterised by a 'common sense' blending of intuitive and analytical cognition, whereby cues presented to a decision-maker for judgement tasks are weighed and assessed for relevance. Furthermore, Cognitive Continuum Theory promotes the importance of determining pattern recognition and functional relations strategies, which can be used to understand the operationalisa-tion of nurse cognition.
... Although brief local and international guidance exists for mental health practitioners in select countries (e.g., American Counseling Association, 2014; Australian Association of Social Workers, 2020; Australian Counselling Association, 2019; APS, 2018; Singapore Psychological Society, 2019), there is a paucity of guidelines and research concerning informed consent, confidentiality, and therapeutic relationships (Kӓmpf & McSherry, 2006). For example, while the Israel Medical Association offers a code of ethics to medical professionals, no unique code is available to mental health practitioners including psychiatrists. ...
Full-text available
Article
Mental health practitioners provide therapeutic interventions to youth on a daily basis, yet sparse research exists to inform ethical decision-making. It is commonly understood that therapeutic work with youth is ethically complex especially when considering informed consent and confidentiality, both of which have practical limitations. This review synthesized literature which reported practitioners’ perspectives (e.g., psychologists, social workers) on ethical decision-making about informed consent and confidentiality in therapeutic work with youth. Specifically, this review aimed to amalgamate relevant professional perspectives on work with youth who may be considered “Mature Minors” or “Gillick Competent,” indications of capacity to consent to intervention. Included studies (n = 25) largely originated in North America (40%), suggesting an underrepresentation of culturally diverse practitioners and help-seeking youth in available literature. Most studies concentrated on confidentiality (72%) and few considered decision-making related to informed consent. Adolescent risk-behavior and related potential for harm were prevalent factors in practitioners’ decision-making. This review demonstrates that practitioners endorse disparate decision-making factors and are limited in consensus to breach confidentiality. As such, practitioners demonstrate variance in approach to working with this developmentally vulnerable population.
Article
Background and rationale Clinicians often encounter a variety of ethical challenges in their routine clinical practice, and it varies across healthcare and cultural settings of their practice. Despite of this, there are no clear-cut available guidelines concerning the right course of action in a given ethically challenging situation. A validated instrument that could capture the health care providers’ (HCP’s) viewpoints in this regard is lacking from Indian settings. Thus, the current study aimed at developing an instrument to assess the HCP’s perspective regarding different ethically challenging situations encountered in the Indian settings. Methods The questionnaire was developed by involving 15 medical experts. A mixed-method approach, Delphi-technique, and online survey were used for item generation and validation. Results The questionnaire comprised of 11 items (accounts 57% variance; having an α = 0.68) representing four factors: health-resource constraints, medical responsibility of the HCP, obtaining patients/family members’ consent for the treatment, and treatment beyond the standard protocol. The gender and clinical disciplines of the participants were related to their level of endorsement for various domains of the ECCS-Q. Conclusions Ethical challenges in the clinical practice fall in different clusters. The clinicians’ course of action in such situations have many socio-demographic and professional determinants. Future studies are warranted to investigate these phenomena.
Article
There is a duty of confidentiality on the part of mental health nurses when they handle confidential patient information. Nonetheless, it may be necessary to disclose confidential information of a patient if the patient is assessed as being a risk to self or others, to protect the patient or others from harm. However, disclosing information inappropriately may constitute a breach of confidentiality. There is a paucity of information on how mental health nurses understand the rules of confidentiality when deciding to withhold or disclose confidential information in these circumstances. An integrative review of the literature was undertaken to explore the disclosure of confidential information by mental health nurses when they assess a patient as being a risk of harm. The findings indicate the rules of confidentiality are not well understood, or are not adhered to by mental health nurses. Risk assessments were found to underpin deliberations to withhold or disclose confidential information of a patient, despite risk being difficult to predict with any certainty. For risk assessment, mental health nurses were noted to prefer their unstructured clinical judgement over actuarial methods; and defer to their clinical intuition over scores of a structured risk assessment instrument, when making structured clinical judgement‐backed decisions in this area of their practice. Gaps in the literature that may be addressed by future empirical research were revealed during this integrative review.
Article
This paper outlines the legal and ethical duties of psychologists in relation to preserving as well as breaching confidentiality in therapeutic relationships. It analyses the results of a questionnaire examining psychologists’ perceptions of the legal and ethical constraints on confidentiality and their likelihood of breaching confidentiality in different situations. The vast majority of participants indicated that the law permits them to disclose confidential information and that there is an ethical duty to disclose information to a third party when the patient is perceived to be dangerous. The results suggest that there is some uncertainty as to when confidentiality should be breached in practice and it is argued that the law is overly complex in this area and that guidelines are needed to assist psychologists in their clinical practice.
Article
The human services are established to support the most vulnerable and marginalised people in our society. Yet media and other reports frequently highlight a disturbing picture of industry failures, malpractice and abuse. This book addresses the response of legal and quasi-legal bodies to human service failures. It outlines those areas of law which are most likely to be activated by human service shortcomings, and those aspects of direct human service delivery which are most likely to attract legal attention. Essential reading for those studying or working in human services and social work, this book is designed to alert people to the legal risks arising as a result of inadequate human service delivery.
Article
Confidentiality is important in healthcare practice, however, under certain circumstances, confidentiality is breached. In this paper, mental health professionals' (MHPs) practices related to informing imprisoned patients about confidentiality and its limits are presented. Twenty-four MHPs working in Swiss prisons were interviewed. Data analysis involved qualitative thematic coding and was validated by discussing results with external experts and study participants. For expert evaluations and court-ordered therapies, participants informed patients that information revealed during these consultations is not bound by confidentiality rules. The practice of routinely informing patients about confidentiality and its limits became more complex in voluntary therapies, for which participants described four approaches and provided justifications in favour of or against their use. Further training and continued education are needed to improve physicians' ethical and legal knowledge about confidentiality disclosures. In order to promote ethical practices, it is important to understand and address existing motivations, attitudes and behaviours that impede appropriate patient information. Our study adds important new knowledge about the limits to confidentiality, particularly for providers working with vulnerable populations. Results from this study reflect typical ethical and practical dilemmas faced by and of interest to physicians working in forensic medicine and other related settings. Copyright © 2015 Elsevier Ltd. All rights reserved.
Full-text available
Article
Confidentiality is vital for building effective therapeutic alliances with clients, yet determining when to breach confidentiality to prevent harm can be challenging. This is especially true when clients are minors, as the primary concern often entails preventing harm to the young person, as opposed to others. The current study sought to explore the considerations that Australian psychologists take into account when making decisions about breaching confidentiality with adolescents. Two hundred sixty-four psychologists responded to an online survey and rated the importance of 13 considerations. Participants were also able to list additional considerations. Factor analysis indicated that four underlying constructs influence psychologists' decisions: (1)the negative nature of the behaviour; (2) maintaining the therapeutic relationship; (3)the dangerousness of the risk-behaviour; and (4) legal protection. Qualitative analysis of the additional considerations uncovered a range of complex and often competing priorities that are also utilised when making decisions about confidentiality with adolescent clients.
Full-text available
Article
This study aimed to identify factors that influence psychologists and psychiatrists to perceive a client as dangerous, to establish the incidence of such clients and to identify actions taken in relation to their treatment The dangerous client was identified as one who posed a risk of physical harm to another. Two hundred and sixty‐two psychologists and 67 psychiatrists were surveyed. Respondents provided details about the most recent case in which they had treated a client whom they perceived to be dangerous. Overall, results indicated that dealing with the dangerous client was a common issue for respondents and that third parties were frequently notified when a client was perceived as likely to physically harm another. A profile of clients perceived to be dangerous was described. Criteria used by respondents to identify the dangerous client were compared with criteria identified in the literature. The significance of these results in the context of contemporary discussion of a “duty to protect third parties” was discussed.
Full-text available
Article
This article focuses on the developing law and ethical justifications for the disclosure of confidential information in the public interest The first part deals with the ethical justifications for “absolute” as opposed to “relative” confidentiality whilst the second part provides an overview of common law cases in England, New Zealand and Canada. In particular, the recent Supreme Court of Canada decision in Smith v Jones (1999) 132 CCC (3d) 225 is analysed. It is argued that the majority of health professionals and ethicists appear to view confidentiality as being relative rather than absolute. However, the test for disclosure set out in Smith v Jones is problematic and there is still a way to go before this complex area of law and health professional practice can be clarified.
Full-text available
Article
Hypothesized that outpatients would be more concerned than inpatients about the possibility of disclosure of confidential information because their higher level of functioning and relationships in the community gave them more to lose as a result of breaches of confidentiality. A semistructured format was used to interview 58 20–67 yr old outpatients. Results were compared with a previous study by D. Schmid et al (1983) with inpatients. The hypothesis was not supported. Findings support the utilitarian position on confidentiality in a therapeutic setting. Ss placed great value on confidentiality, would respond adversely to breaches, and were receptive to therapists disclosing infomation when it would aid them as long as they controlled disclosure. (18 ref) (PsycINFO Database Record (c) 2012 APA, all rights reserved)
Article
The authors utilise cases collected during a randomised population survey to illustrate some of the legal and policy issues concerning routine transfers of information between treating practitioners. Their analysis suggests that implied consent for many routine uses of health information should not be assumed. An important part of consent to health information disclosure is the patients' ability to tailor its scope and content. This requires that they should be provided with additional information. Introducing the measures advised into the clinical setting would bring health information-gathering practices closer to compliance with the collection principles contained in Australian information privacy legislation.
Article
We assessed the techniques that psychotherapists use in the treatment and management of potentially dangerous clients. A nationwide sample of professional psychologists was surveyed in order to determine what they perceived to be important therapeutic interventions for use with dangerous outpatients. From these responses, a 46-item rating scale was developed. Another sample (n = 101) of practicing psychologists completed the scale by indicating the likelihood that they would use each of the 46 interventions. Data were analyzed with respect to nine rationally derived subscales. Indicators of therapist expertise were related to several of the subscales, but theoretical orientation of therapists generally was not. We discuss three areas of future research that will be necessary in developing an empirically based standard of care for dangerous clients.
Article
We assessed the techniques that psychotherapists use in the treatment and management of potentially dangerous clients. A nationwide sample of professional psychologists was surveyed in order to determine what they perceived to be important therapeutic interventions for use with dangerous outpatients. From these responses, a 46-item rating scale was developed. Another sample (n = 101) of practicing psychologists completed the scale by indicating the likelihood that they would use each of the 46 interventions. Data were analyzed with respect to nine rationally derived subscales. Indicators of therapist expertise were related to several of the subscales, but theoretical orientation of therapists generally was not. We discuss three areas of future research that will be necessary in developing an empirically based standard of care for dangerous clients.
Article
Surveyed 200 high school students, 308 undergraduate psychology students, 34 former clients from a community mental health center, and 40 former clients from a university counseling center regarding their knowledge of and attitudes toward confidentiality in therapy. Overall results show that the vast majority of Ss viewed confidentiality as an all-encompassing, superordinate mandate for the psychology profession and that most Ss wanted to be told of the limitations to confidentiality but would have limited therapeutic communications when told. It is concluded that the general population, including those who have been in therapy, does not have an accurate perception of current ethical limitations regarding confidentiality in psychotherapy. (25 ref) (PsycINFO Database Record (c) 2012 APA, all rights reserved)
The views of patients on the degree of confidentiality that is necessary for effective psychiatric care have not been empirically investigated, despite their potential importance to the debate. This study examines the views of 30 psychiatric inpatients on issues related to confidentiality. Patients were found to value confidentiality highly and to be concerned about the possibility of unauthorized disclosures but to have little knowledge of their legal rights or recourses should breaches of confidentiality occur. The data support contentions about the importance of confidentiality and suggest the need for further patient education.
Article
We investigated whether clinicians employ the Tarasoff factors (dangerousness and identifiability of victim) when deciding to break confidentiality in AIDS-related psychotherapy situations. Practicing clinicians were provided with a series of hypothetical psychotherapy scenarios depicting different AIDS clients (prostitute, IV drug user, homosexual, and bisexual). Within each type of scenario, degree of dangerousness and identifiability of victim were systematically varied. Results indicated that clinicians do use both of these factors when deciding to break confidentiality, although dangerousness appeared to be more relevant than identifiability of victim. Clinicians who had psychotherapy contact with AIDS clients were less likely to break confidentiality than those who did not have such contact.