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Balancing Confidentiality: Protecting Privacy and Protecting the Public

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Abstract

Confidentiality is a primary obligation for psychologists. Yet confidentiality has been subjected to legal and professional balancing tests, in which the need for a confidential relationship is balanced and then gives way to other societal or professional needs. The protection of children, prevention of violence, professional training, and treatment coordination have been given priority over maintaining confidentiality. In the process, psychologists seem increasingly inclined to disclose confidential information or seek opportunities to disclose confidential information even when there are other clinical or legal options. This article takes the position that any disclosure of confidential information should be a last resort and that psychologists must push back and limit the growing list of mandatory and permissible disclosures. (PsycINFO Database Record (c) 2012 APA, all rights reserved)
FOCUS ON ETHICS
Jeffrey E. Barnett, Editor
Balancing Confidentiality: Protecting Privacy and Protecting the Public
Michael B. Donner
Oakland, California
Leon VandeCreek
Wright State University
John C. Gonsiorek
University of Minnesota
Celia B. Fisher
Fordham University
Confidentiality is a primary obligation for psychologists. Yet confidentiality has been subjected to legal
and professional balancing tests, in which the need for a confidential relationship is balanced and then
gives way to other societal or professional needs. The protection of children, prevention of violence,
professional training, and treatment coordination have been given priority over maintaining confidenti-
ality. In the process, psychologists seem increasingly inclined to disclose confidential information or seek
opportunities to disclose confidential information even when there are other clinical or legal options. This
article takes the position that any disclosure of confidential information should be a last resort and that
psychologists must push back and limit the growing list of mandatory and permissible disclosures.
Keywords: confidentiality, ethics, privacy, decision making, psychotherapy
Unbalancing Confidentiality
Michael B. Donner
The American Psychological Association (APA) Ethical Prin-
ciples of Psychologists and Code of Conduct (Ethics Code) (APA,
2002) requires that all information provided to a psychologist in
the course of her or his professional work is to be kept private.
Details that could result in the identification of a patient, client,
research participant, student, or any other person whom the psy-
chologist has met with in the course of professional activities is
protected by the Ethics Code and, in some situations, by the laws
and regulations affecting the practice of psychology. Confidenti-
ality is the only standard in the Ethics Code that is positioned
hierarchically. Section 4.01 says in part, “Psychologists have a
primary obligation to protect confidential information” (APA, 2002,
p. 1006). The word primary, derived from the Latin, means “first” or
“most important” (Oxford Compact English Dictionary, 2007). Al-
though this point is infrequently discussed in the literature, it is clear
that the APA has accorded confidentiality unique status and has made
it an ethical imperative. Confidentiality has been described as “the
cornerstone of professionalism” (Woody, 1999, p. 607).
Psychotherapy clients also have a keen sense of the importance
of confidentiality. Breeches of confidentiality lead to the percep-
MICHAEL B. DONNER received his PhD from the California School of
Professional Psychology. He is the chair of the California Psychological
Association Ethics Committee, the Chair of the Alameda County Psycho-
logical Association Ethics and Professional Affairs Committee, and a
member of the Ethics and Impairment Committee of the San Francisco
Center for Psychoanalysis. He has an independent clinical and forensic
practice in Oakland, California.
LEON VANDECREEK received his PhD in clinical psychology from the
University of South Dakota. He is a professor with the School of Profes-
sional Psychology at Wright State University. His teaching and scholarly
interests include assessment and professional issues and ethics. He main-
tains a part-time clinical and consulting practice.
JOHN C. GONSIOREK received his PhD in clinical psychology from the
University of Minnesota. After many years in independent practice of
clinical and forensic psychology, he now works primarily as a consultant
and educator. His areas of professional interest include human sexuality,
forensic psychology, ethical and professional issues, religion and psychol-
ogy, and public policy implications of behavioral sciences.
CELIA B. FISHER received her PhD from the Graduate Faculty New School
for Social Research. She is the Marie Ward Doty professor of psychology
and director of the Center for Ethics Education at Fordham University. She
currently chairs the Environmental Protection Agency’s Human Subjects
Research Board and chaired the American Psychological Association’s
Ethics Code Task Force.
CORRESPONDENCE CONCERNING THIS ARTICLE should be addressed to Mi-
chael B. Donner, 6355 Telegraph Ave., #202, Oakland CA 94609. E-mail:
mbds@sbcglobal.net
Professional Psychology: Research and Practice, 2008, Vol. 39, No. 3, 369–376
Copyright 2008 by the American Psychological Association 0735-7028/08/$12.00 DOI: 10.1037/0735-7028.39.3.369
369
tion of psychologists as less trustworthy (Merluzzi & Brischetto,
1983), and in Miller & Thelen’s (1986) study of psychotherapy
clients, the vast majority “view confidentiality as an all-
encompassing, superordinate mandate for the profession of psy-
chology” (p. 18). Those authors found that the participants wanted
information about the limits of confidentiality; however, most
would also limit their therapeutic disclosures in response. In its
brief in support of the right to a privileged relationship, the APA
(1996) wrote:
Maintaining the confidentiality of client communications is thus both
an ethical duty and a practical necessity for this profession. Psychol-
ogists cannot effectively treat mental and emotional disorders if their
clients fear that their innermost thoughts and feelings will not be kept
confidential. (p. 2)
Although the terms privacy,privilege, and confidentiality may
seem synonymous, there are important distinctions. Privacy has
been defined as:
. . . the right to be left alone. It is a fundamental and compelling
interest. It protects our homes, our families, our thoughts, our emo-
tions, our expressions, our personalities, our freedom of communion
and our freedom to associate with the people we choose . . . .[I]f there
is a quintessential zone of human privacy, it is the mind. (Long Beach
City Employees Association v. City of Long Beach, 1986, p. 3)
Confidentiality protects the privacy of information received in
professional relationships. The duty of confidentiality requires that
psychologists not disclose information received in the professional
relationship, in which privilege is the right to refuse to allow
private information to be disclosed to the legal system, a right not
afforded in most circumstances.
The legal system has also given great importance to confidential
relationships in psychotherapy. The right of psychotherapy pa-
tients to have a confidential relationship with a psychotherapist is
enshrined in the laws of every state and in the federal courts (Jaffee
v. Redmond, 1996). The psychotherapist–patient privilege offers
legal protection to the confidential relationship by providing an
exception to the truth-seeking task of the legal system. In the
judicial system, the general rule is that all information is available
for review. Corporations must turn over their business records,
parents can be compelled to testify against their children, and even
personal individual diaries may not be withheld. “For more than
three centuries, it has now been recognized as a fundamental
maxim that the public has a right to every man’s evidence” ( Jaffee
v. Redmond, 1996, p. 9).
An amicus brief to the Supreme Court in Jaffee v. Redmond,
jointly prepared by the American Psychoanalytic Association, the
Division of Psychoanalysis of the American Psychological Asso-
ciation, the National Membership Committee on Psychoanalysis in
Clinical Social Work, and the American Academy of Psychoanal-
ysis, argued the following:
The possibility that a therapist might reveal in a court of law a
patient’s most troubling inner secrets would stand as a permanent
obstacle to development of the necessary degree of patient trust in the
therapist, and would pose a significant, and for many patients an
insurmountable, barrier to effective treatment. (American Psychoan-
alytic Association, 1996, Background, Part 2, Paragraph 2).
Yet, despite the pervasive emphasis on confidentiality in the
law, the literature, and in our Ethics Code, there are all too many
exceptions to confidentiality and privilege. Every state has regu-
lations that mandate reporting child abuse, and most have excep-
tions to the psychotherapist–patient privilege and laws governing
confidential medical records. These exceptions permit or require
disclosures of confidential information in order to protect the
public or the individual in psychotherapy. Although not unique, in
California, in addition to child and elder abuse reporting, there are
a total of 15 other exceptions to confidentiality. For example,
psychotherapy records are not protected in litigation in which the
mental condition of the patient has been raised by the patient, or in
cases in which a patient has died without a will or in which the
patient is a danger to self, others, and property (California Evi-
dence Code, 2006).
It is not only the legal system that requires disclosures of
confidential information, but confidentiality is affected by the fact
that psychology interns, practicum students, and many licensed
psychologists are in supervision and consultation. Cases are rou-
tinely discussed in individual and group supervision and in class-
room settings, and professional colleagues frequently use each
other for informal consultation in social settings and on Internet
listservs. Although supervision and clinical consultation are criti-
cal components of training and essential for ongoing professional
development, there is little discussion in the literature of the actual
impact of all of these disclosures. Supervision and consultation
routinely involve detailed disclosures of patient information, and it
is unlikely under such circumstances that individually identifiable
information will be adequately disguised. If it is true that disclo-
sures of confidential information in psychotherapy would be a
“permanent obstacle” to psychotherapy, then it is not sufficient to say
that the benefits of training outweigh the impact upon the treatment.
We must attempt to address and reconcile this discrepancy.
It seems that it has become the norm and expectation of both
psychologists and those with whom we work that information
routinely flows in and out of the professional relationship. In-
formed consent documents declare the confidential nature of the
relationship followed by detailed descriptions of the circumstances
that may lead to disclosures. While it may seem rare that the risk
of disclosure dissuades signatories from participation, there is no
way to actually know whether clients and participants are holding
back or in some other way modifying their responses in an effort
to protect their own privacy, as they are no longer assured that the
psychologist can or will do so.
The Problem of Balanced Confidentiality
Psychologists have taken on the duty to perform balancing tests,
weighing the needs of society against the individual being served;
however, the relationship between societal goals and confidential-
ity appear to have become unbalanced. The Ethics Code, case law,
and state regulations that make exceptions to confidentiality rep-
resent efforts to balance the privacy needs of those with whom
psychologists work against the needs of others in society. In
Tarasoff v. Regents of the University of California (1976), the
court held that “the protective privilege ends where the public peril
begins” (Buckner & Firestone, 2000, p. 195), finding that a threat
of serious violence against another overrides the privacy rights of
the patient. Like child abuse reporting before it, the Tarasoff model
has spread across the country. At the present time, some 36 states
permit or require warnings, 9 have no standard, and 1 does not
370 FOCUS ON ETHICS
allow it (Herbert, 2002). It may be understandable that a psychol-
ogist might wish to protect children from abuse or avert serious
violence; however, these exceptions have been received by many
psychologists as unquestioned moral imperatives.
The courts and the legislatures have taken the position that
societal needs trump the privacy rights of psychotherapy patients,
and there are exceptions that have much less significant social
value than protecting against violence and child abuse. For exam-
ple, many states have an exception that allows family members
access to psychotherapy records in cases in which the deceased has
not left a will. This seems an unwarranted intrusion on the right of
the deceased patient to speak to a psychologist about his or her
estate or any other matter. Disclosing confidential information is
no longer seen as an unusual activity made legally permissible
under exceptional circumstances, but instead confidentiality is
something that may be breached in many more routine ways.
As a consultant and educator teaching continuing education and
graduate courses on law and ethics for psychologists, I have found
it common for participants to seek clarification and ask questions
about confidentiality requirements. Ominously, many of the ques-
tions are framed in a manner that makes it seem as if the inquirer
is looking for a loophole in the confidentiality requirements that
would permit disclosures, as opposed to asking questions to de-
termine whether a disclosure must be made. Calls and questions
are often framed by the inquirers’ asking to whom must a report be
made, rather than whether it is absolutely necessary to disclose the
information. It is as if psychologists and graduate students no
longer view the obligation to maintain confidentiality as their
primary obligation but rather as one among many other obligations
and desires they have in mind. A recent report from the California
Board of Behavioral Sciences (2007), the board that licenses
marriage and family therapists, licensed clinical social workers,
and licensed educational psychologists, noted that the most com-
mon complaints received by the board involved breaches of con-
fidentiality, perhaps underscoring the importance of confidentiality
to patients and the erosion of confidentiality amongst clinicians.
Psychologists appear to have absorbed the accumulated teach-
ings in law and ethics courses and risk management programs by
responding to the ethical obligation of confidentiality as if it were
an impediment to other more important societal goals. Participants
in courses that I have presented frequently invoke the specter of an
HIV-positive man potentially infecting an unsuspecting sexual
partner. Many of the psychologist participants wish to intervene by
reporting the behavior to some outside agency rather than seeking
a clinical solution to potentially risky behavior. Participants in
courses taught in a state where it is typically not permissible to
disclose HIV status are frequently disappointed and sometimes
angry that they cannot report the behavior to the authorities or
notify potential sexual partners. There is considerable resistance to
the argument that the overriding consideration should be to main-
tain confidentiality and address the issue clinically. It seems clear that
these audiences have begun to consider a wide range of behaviors
worthy of disclosure. Protecting the public against a broad range of
potential harms has apparently become a higher priority than the
obligation to maintain confidentiality of the individual client.
Another example can be found in the increasing awareness by
psychologists of the potential harm faced by children who witness
domestic violence and the debate as to whether these effects
constitute child abuse. Here again, rather than asking the question
of when and under what circumstances must a report be made, the
emphasis seems to be more on seeking to expand the circumstances
under which disclosures can be made. Audience members often insist
that they “heard someone say that children witnessing domestic vio-
lence is child abuse” (Donner, 2007a, p. 31) and must be reported.
Confidentiality Must Be First
The example of the desire to report the HIV-positive patient
without a clear sense of the legal right or consideration of the
impact of such a disclosure serves to underscore that for many
psychologists, confidentiality is no longer viewed as a “primary
obligation,” the first and most important consideration of ethical
practice. Public and private interests, mandatory reporting laws
and the fear of liability attached to the possibility of a complaint
about failure to protect, and continuing education courses that
emphasize risk management may have diluted the value and mean-
ing of confidentiality in the minds of many psychologists. The
critical infrastructure that is the ethical obligation to maintain
confidentiality as the primary consideration has crumbled under
the pressures of these other demands. There are few psychologists
calling for it to be rebuilt and renewed in professional practice.
Courses on how to maintain confidentiality in the face of social or
legal demands and strategies to resist the demands for information
are needed, not detailed courses on the rules for disclosure.
Instead of courses on reporting laws, psychologists should be
educated on how to resist a subpoena and taught that doing so is an
ethical imperative, not only a risk management strategy to prevent
liability or licensing board complaints. Guidelines from profes-
sional associations are helpful but typically emphasize legal strat-
egies rather than ethical considerations (APA, 2006). The perva-
sive threat of litigation hangs over psychologists, yet there is a
relatively low risk. In a review of data from the California Board
of Psychology, Donner (2007) found that of the more than 16,000
licensed psychologists in California, less than one tenth of 1%
were actually disciplined in any given year, and the risk of a
subsequent or concurrent successful malpractice claim in any
given year is even less likely (Baerger, 2001; Dorken, 1990;
Montgomery, Cupit, & Wimberly, 1999).
Nevertheless, the threat of litigation seems to have contributed
to the dilution of the importance of confidentiality as an ethical
imperative, so that a mandate to maintain confidentiality seems to
have become more a consideration for managing risk rather than
the primary obligation of professional practice. It is argued that in
responding to a subpoena against the wishes of a patient or
participant, a psychologist’s emphasis must be on maintaining the
maximum degree of confidentiality of the records. Psychologists
can be encouraged and trained to do everything reasonable to limit
the disclosure of confidential material. Our training on responding
to subpoenas could focus more on the efforts of Joseph Lifschutz
(In re Lifschutz, 1970) and Jennifer Bier (Moffeit, 2005), clinicians
who risked contempt citations and jail in order to pursue every
legal option to protect the confidentiality of their clients.
Although it is not necessary for psychologists to go to jail rather
than turn over confidential records, psychologists must be encour-
aged to once again treat confidentiality as the most important
ethical obligation and to advocate for all psychologists to assert the
right to a confidential relationship whenever faced with an intru-
sive demand for information from third parties. Information re-
371
FOCUS ON ETHICS
ceived by psychologists should not flow in and out but should
ideally move in only one direction. Psychologists should be vigi-
lant against efforts to dilute confidential relationships and, when
disclosure of confidential information is unavoidable, should pro-
vide only the minimal amount of information necessary in order to
preserve privacy to the fullest extent possible.
In order to achieve the objective of treating confidentiality as the
primary ethical obligation, psychology must more actively assert
the position that without confidentiality, psychologists cannot be
effective. This means that wherever pressure is applied to disclose
confidential information, whether for utilization review, public
health concerns, or the many broad concerns for the well-being of
the public in general, psychologists must push back and strive to
protect the privacy of our clients. Pushing back can take many
forms, including more careful analysis of what actually constitutes
mandatory disclosures, more thoughtful disclosures to other pro-
fessionals, or more detailed assessments of dangerousness. What
began as an effort to protect children from abuse and the public
from dangerous patients has resulted in an ever-larger set of
exceptions to confidentiality. The effort to balance the privacy
rights of clients against the broader needs of society has not just
weakened privacy protections but threatens to undo a fundamental
basis for our ability to serve the very public such disclosures were
intended to protect. Psychologists must consider rejecting the idea of
balancing the privacy rights of clients against the rights of society and
return to a more unbalanced position where confidentiality is once
again the primary ethical obligation of all psychologists.
References
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years after Tarasoff. Journal of Legal Medicine, 21, 187–222.
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Commentaries
Considering Confidentiality Within Broader
Theoretical Frameworks
Leon VandeCreek
Michael Donner has called for psychologists to refocus on the
centrality of confidentiality in mental health practice by attending
more to the essential role that confidentiality plays in psychological
services than to avoidance of violating ethics codes and laws. A useful
way to think about confidentiality of client information is to frame this
principle within the broader frameworks of principle-based ethics and
positive ethics. When psychologists understand confidentiality within
these broader frameworks, they are more likely to aim to be exem-
plary practitioners rather than to just avoid breaking rules.
Principle-Based Ethics
According to principle-based ethics applied to health care, pro-
viders have some basic obligations to their clients unless a superior
obligation overrides them. Beauchamp and Childress (2001) de-
termined that several overarching ethical principles, such as be-
neficence (promote the welfare of others), nonmaleficence (avoid
harming others), justice (refrain from unfair discrimination), and
respect for client autonomy (encourage clients to make decisions
about their health care), were especially important for providers of
health care. The principle of autonomy refers to respecting the
decision making of clients. “Personal autonomy is, at the mini-
mum, self-rule that is free from both controlling interference by
others and from limitations, such as inadequate understanding, that
prevent meaningful choices” (p. 58). Following this principle, to
the extent possible, psychologists should treat clients as autono-
mous individuals who typically have given up none of their human
372 FOCUS ON ETHICS
rights by virtue of becoming clients, and they should participate as
fully as possible in determining treatment goals and methods,
including making decisions about sharing their health care infor-
mation (Knapp & VandeCreek, 2004).
For example, when clients request that their providers share
records with another provider or entity, clients have a right and a
need to know the content of the records. This need and this right
are included in the meaning of informed in the term informed
consent and are based on respect for client autonomy and for
people’s rights and dignity (Principle E, American Psychological
Association [APA] Ethics Code, 2002). Clients may assume that
their providers will share only positive information and may not be
aware of the contents of their records. Yet, principles of confiden-
tiality and client autonomy suggest that providers need to fully
inform their clients about the nature and content of the records that
will be released. The most complete way to fully inform clients is
to share the record (or the information to be shared) with the client
before sending it on. Only then is the client fully informed.
The act of sharing the record also may impress on clients the
extent to which they should be alert to challenges to confidentiality
of their health care information. In my experience of sharing
copies of psychological assessment reports with clients before
sending the report to the recipient of the client’s request, I have
frequently been impressed by the impact on the clients of reading
about themselves. In some instances, clients have spotted errors of
fact; in other instances, they have reacted positively to my efforts
to “make sense” of them. Yet, in other instances, clients have
requested that the report not be sent, not because of factual errors
but because the clients recognized that the information might not
serve them in the ways they had hoped. In some of these instances,
I have modified the report by deleting information that was not
germane to the request, but in other instances clients have changed
their minds about releasing the information altogether. In most in-
stances, these clients gained an enhanced perspective on their rights to
keep personal information confidential. Just because clients sign con-
sent forms does not mean they understand the consequences of doing
so. Our obligation is to teach clients about the broader principles that
frame their requests for release of information.
Positive Ethics
Many psychologists view ethics in terms of rules and standards
and the adjudicatory procedures of disciplinary bodies. From this
standpoint, the study of ethics is defined in terms of rule breaking
and punishment and is understandably anxiety producing. Ethics
codes then represent the ethical “floor” or minimal standards to
which psychologists should adhere (Fisher, 2008; Knapp & Van-
deCreek, 2006). “It encourages psychologists to focus on obeying
laws in order to avoid risks to themselves, when what they need is
a clearer focus on their ethical obligations and the potential risks to
clients” (Fisher, 2008, p. 6, italics in original). In contrast, from a
positive ethics perspective, ethics is viewed as a way to help
psychologists fulfill their highest potential. It means relying on an
underlying philosophical system to help think through complex
ethical dilemmas, rather than searching for solutions primarily to
avoid sanctions (Knapp & VandeCreek, 2006). This view of pos-
itive ethics parallels the development of positive psychology. Positive
psychology focuses, in part, on shifting the emphasis of professional
psychologists away from an almost exclusive focus on wrongdoing,
pathology, and disciplinary actions toward a vision of high ethical
standards. Positive ethics also encourages individual psychologists
and institutions to actively promote exemplary behavior.
At first, it may appear difficult to strive for moral excellence
with the principle of confidentiality. The APA ethics code and
laws provide several basic rules to follow. But if we just follow the
rules, we minimize the importance and the major point of confi-
dentiality. Originally, confidentiality rules were constructed to
ensure that clients feel safe enough to share private and sometimes
embarrassing information. Cullari (2001) surveyed clients about
what they wanted and expected from psychotherapy, and two of
the highest rated goals were to have “a feeling of safety and
security” and “the chance to talk to someone in a safe environment
and without fear of repercussion” (p. 104). Positive ethics then
asks psychologists, How can we facilitate that safe environment?
Psychologists can help to create that environment by being
meticulous about maintaining the confidentiality of the client’s
revelations. They can earn that trust by taking special care to
inform clients about the limits to confidentiality at the outset of
treatment and along the way as client disclosures raise questions
about confidentiality. For example, when clients request that their
information be shared with an insurance company for reimburse-
ment, psychologists can inform clients that information on insur-
ance forms usually does not stop at the desk of the claims manager.
In fact, the information likely is further shared with national data
banks where the information can be accessed by other insurance
companies when the client elects to purchase another insurance prod-
uct or a large home mortgage. Psychologists can play a helpful role in
teaching clients about the risks of sharing their health information, and
this information should be shared at the beginning of service.
Fisher (2008) presented an ethical practice model for confiden-
tiality that clarifies the importance of the ethical principle, places
the rules and exceptions into perspective, and encourages psychol-
ogists to reach for the “ethical ceiling” (p. 4). The model provides
a sequence of six steps for psychologists: (a) be well prepared for
a discussion with clients about the importance of confidentiality,
(b) tell clients the truth up front, (c) obtain truly informed consent,
(d) respond ethically to legally imposed requests for disclosure, (e)
avoid the “avoidable” breaches of confidentiality (e.g., closely
monitor record-keeping practices, protect client identity in presen-
tations), and (f) talk about confidentiality to peers, students, and
attorneys. Fisher’s goal is to assist psychologists to reclaim their
status as experts about confidentiality.
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Knapp, S., & VandeCreek, L. (2004). A principle-based analysis of the
2002 American Psychological Association ethics code. Psychotherapy:
Theory, research, practice, training, 41, 247–254.
Knapp, S., & VandeCreek, L. (2006). Practical ethics for psychologists: A
positive approach. Washington, DC: American Psychological Associa-
tion.
373
FOCUS ON ETHICS
Informed Consent Can Solve Some
Confidentiality Dilemmas, But Others Remain
John C. Gonsiorek
In “Unbalancing Confidentiality,” Michael Donner mirrors con-
cerns comparable to those in Fisher’s (2008) discussion on confi-
dentiality. This unease has been building for some time: Those
who anticipated that the U.S. Supreme Court in Jaffee v. Redmond
had placed therapist privilege on a firmer legal foundation will, on
closer scrutiny of the decision, be disabused of this hope (Shuman
& Foote, 1999). The expectation of confidentiality—that bedrock
of psychological services—and its corresponding legal privilege
are deeply eroded, perhaps moribund.
Donner’s critique of the situation is more hopeless than is
warranted because he does not emphasize how effective a remedy
informed consent can sometimes be. Creative, situation-specific,
and proactive use of informed consent can manage some problems.
Foote and Shuman (2006) describe how this remedy might be
applied in forensic evaluations. Indeed, an argument can be made
that without proactive informed consent as the core of confiden-
tiality, effective management is not likely.
Yet, Donner’s call for a reconfigured balance regarding confi-
dentiality is well taken: The situation is hardly hopeful. Informed
consent more squarely addresses legal liability than the erosion of
privacy, the foundation of psychotherapy. How can a psychologist
obtain informed consent for possible challenges to privilege stem-
ming from future events: divorces from marriages that have not yet
taken place, motor vehicle accidents or criminal allegations that
have yet to occur, and the like? These are not uncommon, and a
vague admonition that anything might be possible does not convey
the potential seriousness; at the same time, a dire admonition
seems overly pessimistic. Foote and Shuman (2006) present data
suggesting that clients may be less troubled by the tenuous nature
of privilege than anticipated, but this is scant comfort. Those
seeking psychological services are typically preoccupied with the
issues that impelled them to seek relief. A future scenario of
records being unexpectedly ordered into legal proceedings against
their wishes with adverse results is simply not salient. But when it
occurs, clients are usually very troubled by it.
The porousness of confidentiality seems to be increasing. Most
discussions of mandated reporting focus on neglect and abuse of
minors, elders, and the vulnerable. There is arguably more con-
sensus on this type of reporting than on other mandates that the
states have created, such as selective reporting of misconduct by
health care professionals (required of other health care profession-
als) and of pregnant women ingesting certain substances. Child
and elder welfare were compelling reasons for initial mandated
reporting statutes, but the temptation for legislatures to expand
them seems irresistible, even as the rationales are generally wor-
thy. But as health care professionals become deputized as agents of
the state—without consent, compensation, or training—for a
broadening array of functions, the net effect may undermine the
core of the health care relationship.
More troubling is the perception by some in the legal commu-
nity that medical records are legitimately intended for future legal
discovery. An attorney once asked me the mechanism for filing an
ethics complaint against a plaintiff’s (distant) past treating psycho-
therapist who destroyed treatment records. After ascertaining the
particulars, I informed the attorney that no violation had occurred
because given the age of the records, the psychotherapist was
within existing standards of record destruction. The attorney was
incredulous, stating that psychology was negligent in allowing this
practice and that the legal system needs mental health records
retained in perpetuity, like dental X-rays, in case attorneys might
find them useful in future discovery. Contrast this reasoning with
the nuanced and balanced cost– benefit analysis regarding records
retention in the American Psychological Association’s most recent
Record Keeping Guidelines (2007). This attorney’s view is some-
what extreme but probably more consistent with judicial thinking
than are most psychotherapists’ expectations. As Shuman and Foote
(1999) noted, “[T]he confidentiality of the psychotherapist relation-
ship is a fragile and perishable commodity” and “the barrier of
privilege is relatively porous in the best of circumstances” (p. 483).
Several authors (e.g., Fisher, 2008; Foote & Shuman, 2006;
Shuman & Foote, 1999) have offered thoughtful and useful models
for managing such confidentiality challenges. Yet, problems re-
main. The fact that we need models to effectively implement the
Ethics Code (APA, 2005) suggests that its implementation is
obscure and fragile. The models are complex, even for experienced
psychologists. Since confidentiality challenges often occur under du-
ress, it can reasonably be anticipated that even experienced psychol-
ogists will sometimes fail in implementing them. Additionally, these
models are complicated for clients’ informed consent and perhaps
beyond the scope of understanding. Informed consent requires that the
client actually understands the information such that reasonable
choice can be exercised. Genuine informed consent may sometimes
not be possible in these models, no matter how many forms are duly
signed. Finally, the models rest on the assumption that risk can be
reliably assessed in the present and that such assessment predicts
future risk. The former seems imprecise; the latter, mere fantasy.
How did psychology reach a point where the confidentiality that
animates the relationship is so besieged? The bases of this crisis
are multidetermined but likely include the following:
1. Weakness in ethics training. The self-examination and
critical thinking required to master confidentiality are
daunting. Psychologists in training have little hope of
adequate preparation if faculty and supervisors have min-
imal direct experience in these challenges (a vulnerability
in research-oriented programs) or if the program finds it
unprofitable to devote adequate resources (a vulnerability in
for-profit training programs). A remedy: Require accredited
programs to demonstrate sophisticated ethics training.
2. Excessively legalistic language in professional codes and
standards. Section 4.01 of the current Ethics Code may
be an example of legally accurate but clinically opaque
wording. In Section 4.05, the meaning of the phrase only
as mandated by law or where permitted by law may be
precise legally but can suggest an inaccurate degree of
option in disclosure. There are other examples. A rem-
edy: Psychology can do a better job of wording future
codes in ways that illuminate, not obfuscate. Vetting a
code with counsel to assure legal viability is not the same
as adopting terminology that is more transparent to law-
yers than to psychologists.
374 FOCUS ON ETHICS
3. The corporatization of psychology. Many psychologists
are trained by or work in for-profit corporations con-
trolled or managed by nonpsychologists. The primary
duty of corporations is to its owners or stockholders. This
duty mixes poorly with psychologists’ duties to clients
and professional standards. Managerial cognitive styles
are typically at odds with critical and scientific thinking.
Adoption of language and thought derived from market-
ing and management can undermine socialization into
psychology as a behavioral science and acceptance of its
fiduciary duties. Watson (2005) noted, “Not only is man-
agerial language an inadequate tool with which to explore
these fundamental questions about the nature of truth, it
has no respect for them. It is not a language for serious
inquiry or explanation, or even for thinking” (p. 27). A
remedy: Require maintenance of psychological intellec-
tual and linguistic traditions in whatever systems psy-
chologists are trained or operate.
4. Encroachment by the legal/judicial system. The legal/
judicial system is expansionist and operates on the as-
sumption that what is best for it is best for society. This
however, is an empirical question, not a fact. Little data
document the costs and benefits of mandated reporting,
especially in its more exotic and idiosyncratic forms.
Even less data document the benefit to society of aggres-
sive legal discovery. But costs include depleting re-
sources in health care, compromising informed consent,
demoralizing professionals, and weakening that core
patient–professional relationship. A remedy: Psychology
could form alliances with other health care disciplines to
seek tort and other legal reforms to create greater checks
and balances and to require that legislative initiatives be
subject to cost– benefit and effectiveness tests.
There are few roles in society in which the role bearer is
ethically required to place the welfare of vulnerable and often
lesser status individuals above the needs of one’s employers, the
convenience of the powerful, and one’s own comfort. But such is
the role of health care professionals. This is the fundamental
difference between professional and employee. This role is inher-
ently subversive, because it does not view typical power structures
as primary. Our clients, often mentally troubled and not societally
valued, and the integrity of our science, with its often uncomfort-
able findings and difficult methodologies, must come first. Other-
wise, we are unworthy of public trust. The unchecked erosion of
confidentiality is nothing less than an erosion of psychology, and
of all health care, as professions and as independent entities.
References
American Psychological Association. (2002). Ethical principles of psy-
chologists and code of conduct. American Psychologist, 57, 1060 –1073.
American Psychological Association. (2007). Record keeping guidelines.
American Psychologist, 62, 993–1004.
Fisher, M. A. (2008). Protecting confidentiality rights: The need for an
ethical practice model. American Psychologist, 68, 1–13.
Foote, W. E., & Shuman, D. W. (2006). Consent, disclosure, and waiver
for the forensic psychological evaluation: Rethinking the roles of psy-
chologist and lawyer. Professional Psychology: Research and Practice,
37, 437– 445.
Shuman, D. W., & Foote, W. E. (1999). Jaffee v. Redmond’s impact: Life
after the Supreme Court’s recognition of a psychotherapist–patient priv-
ilege. Professional Psychology: Research and Practice, 30, 479 – 487.
Watson, D. (2005). Death sentences: How cliche´s, weasel words, and
management-speak are strangling public language. New York: Gotham.
The APA Ethics Code and the Need for
Balanced Confidentiality and Disclosure
Decisions in Psychotherapy
Celia B. Fisher
“Unbalancing Confidentiality” insightfully calls for renewed
attention to the need to reflect on the place of confidentiality in
moral considerations and obligations of practicing psychologists to
individual clients, affected others, and society. Michael Donner’s
goal is to reposition confidentiality on top of what he sees as a
pyramid model of ethical obligations. The goal of this commentary
is threefold: (a) to correct the impression that the current American
Psychological Association’s (APA’s) Ethical Principles and Code
of Conduct (2002) was crafted to dictate a hierarchy of ethical
obligations, (b) to dispute the notion that the Ethics Code accords
confidentiality a “most important” status, and (c) to demonstrate
the value of the Ethics Code’s flexibility in recognizing that ethical
practice decisions require sensitivity to the goodness of fit among
the therapeutic goals, professional responsibilities, relevant laws,
and stakeholder needs unique to each client–therapist relationship
(Fisher, 2002).
The Nonhierarchical Nature of the Ethics Code’s
Principles and Standards
The 2002 APA Ethics Code begins with a set of five general
principles intended to inspire psychologists toward the highest
ethical ideals of the profession. The remainder of the code is
composed of 151 enforceable standards that describe required,
prohibited, and permitted behaviors across a broad range of roles
and activities performed by psychologists. Unlike the Ethical Stan-
dards, the principles do not represent specific or enforceable rules
of conduct. Rather in reflecting the moral values of the profes-
sion’s community of purpose, they help guide psychologists’ de-
cision making by providing an analytic framework from which to
identify those standards that are appropriate to the situation at hand
(Fisher, 2002). The introduction and preamble to the code make
clear that the priority given and the manner in which each principle
or standard is applied are context specific. For example, as artic-
ulated in the introduction to the code, “the application of an Ethical
Standard may vary depending on the context” (APA, 2002, p.
1061). With respect to the aspirational principles, the Ethics Code
Task Force (ECTF) charged with presenting a revision of the 1992
Ethics Code to APA’s Council of Representatives explicitly re-
jected a hierarchical organization of moral ideals and listed the
principles in alphabetical order. Thus, an underlying assumption of
the Ethics Code is that the moral priority of any principle or
standard will be determined by the ethical requirements of the
situation in which it is embedded.
375
FOCUS ON ETHICS
Balancing Confidentiality and Aspirational Principles
Several of the Ethics Code’s aspirational principles provide a
moral framework for supporting contextually sensitive decisions to
maintain or to disclose confidential information. The principles
call for psychologists to strive to do good and avoid harm, to keep
promises and recognize their fiduciary responsibilities, and to
respect the dignity and worth of all people and the rights of
individuals to privacy, confidentiality, and self-determination.
(Principles A, Beneficence and Nonmaleficence; B, Fidelity and
Responsibility; and C, Respect for People’s Rights and Dignity).
As Donner rightly notes, protecting confidentiality can promote
client autonomy and welfare by helping to establish and preserve
a trusting therapeutic alliance and protect clients against social,
legal, and economic harms that can result from the disclosure of
such information. At the same time in appropriate circumstances,
disclosure of confidential information can (a) protect clients from
their own or others’ actions that would lead to substantial social,
physical, legal, or economic harm; (b) enhance therapeutic goals
through helping the client recognize that some behaviors and
situations are serious obstacles to autonomous decision making
and mental health; and (c) demonstrate that psychologists’ fidu-
ciary obligations to clients (by means of their specialty training
and license to practice) require them to act on their expert knowl-
edge and legal obligations in both maintaining and disclosing
confidential information.
Balancing Confidentiality and Enforceable Standards
Psychologists have a primary obligation and take reasonable precau-
tions to protect confidential information obtained through or stored in
any medium, recognizing that the extent and limits of confidentiality
may be regulated by law or established by institutional rules or
professional or scientific relationship.—APA Ethics Code Standard
4.01, Maintaining Confidentiality)
Donner presents a number of important arguments regarding the
need to reconsider ethical priorities related to confidentiality and
disclosure in professional practice. For example, he rightly calls
for psychologists to question whether they are abdicating their
professional decision-making role by resorting to risk-averse con-
fidentiality and disclosure policies that prioritize minimizing the
potential for conflict between ethics and law or institutional poli-
cies rather than maximizing clients’ rights and welfare. However,
as illustrated in the quote from Standard 4.01, he errs in arguing
that the Ethics Code language and intent privilege confidentiality
over other ethical standards and procedures.
First, without resorting to dictionary definitions of the term
primary, I would note that Standard 4.01 does not state that
maintaining confidentiality is the primary obligation of psycholo-
gists but rather that it is aprimary obligation among other com-
peting obligations explicitly described in the same standard as
related to law, institutional rules, or the professional or scientific
relationship. Thus, Standard 4.01 neither prioritizes confidentiality
over other obligations nor does it prioritize professional over law
or institutional obligations.
Second, the need for a balanced ethical decision-making ap-
proach to confidentiality is communicated throughout the remain-
ing standards within Section 4 (Confidentiality) and other sections
of the Ethics Code. For example, the need to discuss the limits of
confidentiality is highlighted in Standard 4.02 and is repeated in all
standards relevant to informed consent (Standards 3.10, Informed
Consent; 8.02, Informed Consent to Research; 9.03, Informed
Consent in Assessments; 10.01, Informed Consent to Therapy).
Finally, the conditions under which confidential information can
be ethically disclosed without a client’s consent are clearly delin-
eated in Standard 4.05b, Disclosures.
The point of this brief exercise in the language of specific
principles and standards is to underscore that the Ethics Code’s
balanced position reflects the discipline’s recognition that an ab-
solutist approach to either confidentiality or disclosure decisions
can be damaging to client autonomy and welfare.
Confidentiality and Ethical Decision-Making
Donner provides excellent examples of instances in which risk
management procedures may override rightly practiced confiden-
tiality procedures in psychotherapy. His argument that liability
concerns regarding child abuse and Tarasoff-type laws should not
trump ethical decision making is well grounded and is consistent
with the Ethics Code’s approach to conflicts between ethics and
law (Standard 1.02, Conflicts Between Ethics and Law, Regula-
tions, and Other Governing Authority). However, there is no
ethical menu from which the right ethical actions can simply be
selected. Many ethical challenges are unique in time, place, and
persons involved (Fisher, 2002). Assigning confidentiality privi-
leged status in ethical decision making does not do justice to the
complex relationship between ethics and law that often emerges in
therapeutic contexts nor to a conception of psychologists as active
moral agents in constructing solutions to ethical quandaries
(Fisher, 2002).
Confidentiality and disclosure decisions should not be isolated
or isolating. Practitioners need to apply practical wisdom to con-
fidentiality challenges leading to right solutions that can be real-
ized given the nature of the problem and the individuals involved.
The goals of psychotherapy are not well served when confidenti-
ality decisions are isolated from equally important professional,
moral, and legal considerations. Nor are clients well served if
maintaining confidentiality isolates them from understanding the
practical and legal consequences of their own or others’ harmful
behaviors, the protective and welfare-promoting aspects of law, or
the fiduciary obligation of psychologists to understand and appro-
priately respond to clients’ mental health needs within the oppor-
tunities and restraints imposed by these needs and the legal and
social contexts in which they are expressed. Envisioning confiden-
tiality decisions as a process that draws on psychologists’ human
responsiveness to those with whom they work and their awareness
of their obligations to society will sustain a profession that is both
effective and ethical.
References
American Psychological Association. (2002). Ethical principles of psy-
chologists and code of conduct. American Psychologist, 57, 1060 –1073.
Fisher, C. B. (2002). Decoding the ethics code: A practical guide for
psychologists. Thousand Oaks, CA: Sage Publications.
Received November 7, 2007
Revision received February 28, 2008
Accepted March 6, 2008
376 FOCUS ON ETHICS
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