A Defense of Unqualified Medical Confidentiality

It is broadly held that confidentiality may be breached when doing so can avert grave harm to a third party. This essay challenges the conventional wisdom. Neither legal duties, personal morality nor personal values are sufficient to ground professional obligations. A methodology is developed drawing on core professional values, the nature of professions, and the justification for distinct professional obligations. Though doctors have a professional obligation to prevent public peril, they do not honor it by breaching confidentiality. It is shown how the protective purpose to be furthered by reporting is defeated by the practice of reporting. Hence there is no conflict between confidentiality and the professional responsibility to protect endangered third parties.     

Confidentiality issues in psychological research

There has been increased attention in recent years to the importance of individual privacy and professional confidentiality both in Australia and overseas. At the same time, psychologists' growing research interests in areas such as AIDS, child sexual abuse, and domestic violence have led to new ethical dilemmas over the contract of confidentiality between researchers and their research participants. The present paper discusses a number of issues regarding the ethics of confidentiality in psychological research. Following Bok (1989), the issues are highlighted within the context of four ethical principles that underlie researchers' obligations to preserve confidentiality. These principles are derived from considerations of privacy, loyalty, the pledge of silence, and professional codes of ethical standards. Each of these principles is illustrated with examples taken from recent research. We devote special attention to instances that appear to provide a clash between moral principles.     

Confidentiality in the military

This article presents and analyzes options military physicians face regarding whether or not to respect gay servicepersons' confidentiality. This situation is considered to be generic to others that involve similar conflicts. Dilemmas arising before and after the emergence of HIV-related diseases are discussed. Recommendations regarding psychiatrists' ethical obligations when conducting forensic exams are compared with military physicians' obligations to respect servicepersons' confidentiality. It is suggested that military psychiatrists should violate servicepersons' confidentiality under some circumstances, but generally should warn them in advance that they will do so. Possible exceptions exist when warning servicepersons would increase the likelihood that justice would be violated or substantial harm would occur.     

Fiduciary Duties and Moral Blackmail

In meeting legal or professional fiduciary obligations, a fiduciary can sometimes come to share a special moral relationship with her beneficiary. Special moral relationships produce special moral obligations. Sometimes the obligations faced by a fiduciary as a result of her moral relationship with her beneficiary go beyond the obligations involved in the initial fiduciary relationship. How such moral obligations develop is sometimes under the control of the beneficiary, or of an outside party. As a result, the fiduciary can be the target of a distinctive kind of moral manipulation; it is sometimes possible to force a fiduciary to perform a particular act by placing her into circumstances under which she is morally obliged to perform it, because all her other options are morally unacceptable. This is moral blackmail. Moral blackmail is a powerful force within many sorts of human interactions. By understanding the ways in which fiduciaries become vulnerable to moral blackmail, we can better understand the pressures faced by fiduciaries in keeping their personal and professional lives separate, the dynamics of certain kinds of employment negotiations, and the injustice that results when women take on the bulk of the work within caring professions.     

Are ethics different in different settings?

Practicing counselors may interpret ethical obligations differently according to their work settings. These differences are related to: (a) the relative strength of the professional identification of counselors in various settings, and (b) differences in the support for or pressures against ethical practice in different settings. This article focuses on one of the problems related to the nature of the client population and the counseling setting: What rights of confidentiality do minors have against disclosure to their parents?     

Confidentiality in psychological practice: a decrepit concept?

Although the principle of confidentiality in the relationship between psychologists and client has been vaunted, and is emphasised in the Australian Psychological Society's Code of Professional Conduct (the APS code; 1994), the confidentiality of this relationship is circumscribed by the absence of legal protections, the ethical beliefs of psychologists, institutional practices, and the provisions of the APS code itself. Lack of privilege in judicial proceedings, and statutory obligations to report certain types of behaviour, mandate breaches of confidentiality in some circumstances. Ethical beliefs of psychologists may support disclosure, especially where it is believed that there is danger of serious physical harm to the client or others. Multidisciplinary teams and institutional settings require the exchange of information for optimal delivery of services. Recent amendments to the APS code may require disclosure without the client's consent when a client is believed to be suicidal. Such developments, when considered at all, are typically regarded as exceptions to a general obligation of confidentiality. However, discussion of exceptions presupposes agreement on fundamental principle: the significance of, and rationale for, confidentiality in the psychologist-client relationship. It is argued in this paper that the obligation of confidentiality has been assumed rather than vigorously analysed and empirically explored. A critical examination of this obligation is the most appropriate starting point for the rehabilitation of contemporary principles of confidentiality in the psychologist-client relationship.     

An analysis of the law of confidentiality with special reference to the counselling of minors

Although professional counsellors would be aware of the need to maintain confidentiality in their work with clients, the basis and scope of this obligation is generally less well understood. This article examines the issue of counsellor-client confidentiality from a legal perspective, and considers the potential bases of legal liability which counsellors may have with respect to the maintenance of client confidentiality as well as the circumstances under which disclosure of this information will be required or may be permitted. It is contended that the general issue of counsellor-client confidentiality presently poses particular difficulties for counsellors who work primarily with children and adolescents, especially when clinical services are provided directly to adolescents. In such instances, counsellors may be confronted by competing and even conflicting interests, and may be required to exercise judgement in relation to the disclosure of confidential information which has been provided by a minor. Although there is no clear law which directly relates to this area, it is argued that counsellors may presently have a primary obligation to respect the wishes which are expressed by a "mature minor" in relation to the provision of counselling services. It is further argued that awareness of general legal principles which are of relevance to areas of professional practice can provide much assistance to practitioners who could be required to make decisions in the course of their work which may later be examined in the context of legal proceedings.     

Cultural considerations in release of information

In most mental health professions, confidentiality is probably the most important ethical principle in psychology, aside from nonmalfeasance. However, confidentiality is embedded in the Western values of individuality and autonomy. This creates a moral and ethical dilemma for clinicians working with clients from other cultures. This article presents 3 cases to highlight the conflict that many clinicians are likely to face with regard to confidentiality when working with clients from South Asia and similar cultures. The importance of understanding how cultural values may contradict professional ethics and some ways in which the clinician can address them are also discussed.     

Confidentiality and paradox: the location of ethical space

Implicit in Jung's alchemical metaphor of the vas bene clausum is the idea of an analytic frame with a space inside it for something vital, a relationship between two selves, to develop. For this to happen, analysts must respect their patients' rights to confidentiality. The paper explores the analyst's state of mind and the intrapsychic processes that are constellated when struggling with ethical dilemmas about issues of confidentiality in analytic work. The author suggests that at times when analysts consider breaking confidentiality, there is often a disturbing inner conflict between their moral principles (codes of ethics) and their internal personal ethical attitude. At these difficult moments, the mutuality of the work and the vas bene clausum can be significantly disrupted. The analyst tries to find a third position, a mental and emotional ethical space where the subjective and the objective, the ethical and the unethical can become more companionable bedfellows.     

Cultural Considerations in Release of Information

In most mental health professions, confidentiality is probably the most important ethical principle in psychology, aside from nonmalfeasance. However, confidentiality is embedded in the Western values of individuality and autonomy. This creates a moral and ethical dilemma for clinicians working with clients from other cultures. This article presents 3 cases to highlight the conflict that many clinicians are likely to face with regard to confidentiality when working with clients from South Asia and similar cultures. The importance of understanding how cultural values may contradict professional ethics and some ways in which the clinician can address them are also discussed.     

Unwanted Sexual Experiences in University Settings: Survivors’ Perspectives on Effective Prevention and Intervention Strategies

Unwanted sexual incidents on university campuses pose significant public health and safety risks for students. This study explored survivors’ perspectives on secondary prevention of campus sexual assault and effective strategies for intervention programs for unwanted sexual incidents in university settings. Twenty-seven student survivors of unwanted sexual experiences participated in semi-structured in-depth interviews. Data were analyzed using thematic analysis and a constructionist perspective. The findings were contextualized using the ecological model. Barriers to reporting included concerns about one’s story not being believed, personal minimization of the incident, belief that no action will be taken after reporting, confidentiality concerns, and other perceived costs of reporting. Survivors provided valuable insight on potentially effective prevention and intervention strategies to address the problem of unwanted sexual incidents on university campuses. These findings may be useful for prevention and intervention policies and programs in university settings and for providers who assist survivors of unwanted sexual experiences.     

From posts to protection: Ethical considerations regarding forensic psychiatrists and a duty to warn based on social media

Increasing use of social media in forensic mental health evaluations will lead to new challenges that must be resolved by forensic practitioners and the legal system. One such dilemma is the discovery of information that would typically trigger a legal duty and professional ethics obligation for mental health professionals to breach doctor-patient confidentiality to promote public safety and prevent harm to vulnerable third parties. Although the law and professional organizations offer clear guidance for practitioners in the treatment role, there is currently no clarity from the law or instruction from professional organizations on what mental health professionals should do if they discover such information during a confidential forensic evaluation. For example, a forensic evaluator may find evidence on social media of an evaluee’s threats to seriously harm others, abuse of children and the elderly, or severely impaired driving. There are no clear guidelines for how a forensic psychiatrist should respond in these complicated situations. We review the legal concepts and historical evolution of confidentiality, privilege, and mandated reporter duties that forensic practitioners should consider in these legally ambiguous situations. Finally, we discuss ethics frameworks practitioners can implement to determine their most ethical course of action when faced with such dilemmas.     

Adolescents' attitudes toward confidentiality between the school counsellor and the adolescent client

It is increasingly acknowledged that confidentiality is relative rather than absolute in any counselling relationship. This is particularly the case for minors receiving counselling at school, where third parties such as parents and teachers frequently have access to information about an adolescent client. The Australian Psychological Society's Code of Professional Conduct (1986) states that minors are unable to provide voluntary, informed consent in consulting relationships, although current research does not necessarily support this view. The current study investigated adolescents' attitudes to confidentiality in situations that may commonly arise in school counselling. The study also investigated the third parties to whom adolescents believed information should be disclosed by a counsellor. Respondents were 303 male and 254 female students attending three single-sex nongovernment schools. Ages ranged from 13 to 18 years. Results suggested that the adolescents' attitudes to confidentiality generally corresponded with adult views. Many adolescents wanted more autonomy regarding disclosure of information obtained in a counselling situation than the APS code provides. Parents were the only third party to whom the adolescents generally believed disclosure should be made. There were few age differences, but a wide range of opinions were evident, with female adolescents consistently more strongly in favor of confidentiality than males.     

Psychologists' perceptions of legal and ethical requirements for breaching confidentiality

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.     

Defending Research Confidentiality “To the Extent the Law Allows:” Lessons From the Boston College Subpoenas

Although in the US there have been dozens of subpoenas seeking information gathered by academic researchers under a pledge of confidentiality, few cases have garnered as much attention as the two sets of subpoenas issued to Boston College seeking interviews conducted with IRA operatives who participated in The Belfast Project, an oral history of The Troubles in Northern Ireland. For the researchers and participants, confidentiality was understood to be unlimited, while Boston College has asserted that it pledged confidentiality only “to the extent American law allows.” This a priori limitation to confidentiality is invoked by many researchers and universities in the United States, Canada and Great Britain, but there has been little discussion of what the phrase means and what ethical obligations accompany it. An examination of the researchers’ and Boston College’s behaviour in relation to the subpoenas provides the basis for that discussion. We conclude that Boston College has provided an example that will be cited for years to come of how not to protect research participants to the extent American law allows.     

Protecting confidentiality rights: the need for an ethical practice model

All psychologists must uphold the same ethical standards about confidentiality even though each state imposes different legal limits on their ability to protect clients' confidences. The resulting ethical-legal confusion is exacerbated by legally based confidentiality training that treats legal exceptions as if they were the rule and fosters the impression that attorneys are now the only real experts about this aspect of practice. This article provides an ethics-based confidentiality practice model that clarifies the ethical rule and puts its legal exceptions into ethical perspective. Like the Confidentiality section of the American Psychological Association's (2002) Ethical Principles of Psychologists and Code of Conduct, this outline would apply to all psychologists regardless of state laws, but the details of its implementation would vary according to role and setting. It can be used as a universal training outline, a consultation and supervision tool, a guide to professional practice, and a basis for clearer ongoing conversation about the ethics of "conditional confidentiality." Psychologists can use this practice model to regain their status as experts about the confidentiality ethics of their own profession.     

Private work in public places: Confidentiality and role tensions in a university counselling service

This paper aims to explore issues of confidentiality relating to working with undergraduate and postgraduate students in a university counselling service. The context of a counselling service within our institute of higher education has to be understood in its relationship to academic, administrative and managerial staff, to medical and psychiatric services personnel and to the wide range of other student support and welfare services in the organization whether run by university staff or the students' union. Some reflection will be given to the need for clarity in the range of roles counsellors have to play within the different functions of the university. The client-counselling relationship cannot be seen as a dyad but as a triad or an even more complex constellation of relationships when regarded in an institutional context. The central premise is based on understanding the conscious and unconscious dynamics in the institution and how these impinge on the relationship between client and counsellor in challenging or assuming the confidentiality held by the service. Such boundary issues are identified in consultation and referral, breaking confidentiality, referral of disruptive students, calls for help and holding confidentiality. The case material drawn on to illustrate these five areas is also described in terms of anxieties raised and how these are projected, introjected and contained.

Within the service client and counsellor contract to work together. It is made clear that counselling is a professional relationship with agreed boundaries and a commitment to confidentiality. This is crucial to the working relationship and is a means of providing the client with both safety and privacy. Any limitation on the degree of confidentiality offered may reduce the usefulness of counselling. Bound by his or her professional code of ethics the counsellor will reach an agreement with the client at the outset about the extent of confidentiality they are offering, take care not to disclose information given in confidence and, when possible, be able to negotiate any change in agreement with the client.

Exceptional circumstances which may occur and give rise to the counsellor's decision to break the confidentiality formerly agreed between him or herself and the client are those which give grounds for believing the client will cause serious harm to others or themselves or have harm caused to them. Reference will be made to the role of consultant supervision in such situations and how any breaking of confidentiality can best be minimized. Attention will be given to the relevant ethical codes to which counsellors adhere and the issues of confidentiality within the legal process as well as whether the requirements of providing counselling services for students in higher education impel us, logically and practically, towards certain policies in regard to boundaries.     

Reasonable Partiality in Professional Relationships

First, two aspects of the partiality issue are identified: (1) Is it right/reasonable for professionals to favour their clients’ interests over either those of other individuals or those of society in general? (2) Are special non-universalisable obligations attached to certain professional roles? Second, some comments are made on the notions of partiality and reasonableness. On partiality, the assumption that only two positions are possible – a detached universalism or a partialist egoism – is challenged and it is suggested that partiality, e.g. to family members, lies between these two positions, being neither a form of egoism, nor of impersonal detachment. On reasonableness, it is pointed out that ‘reasonable’ is an ambiguous concept, eliding the notions of the ‘morally right’ and the ‘rational.’ Third, a series of practical examples are taken from counselling, medicine, law, education and religious practice and some common principles are abstracted from the cases and discussed. These include truth-telling, confidentiality, conflicts of interest between clients and particular others and between clients and society. It is concluded that while partiality can be justified as a useful tool in standard cases, particular circumstances can affect the final verdict.     

La force normative du contrôle ordinal des contrats conclus par les médecins

Professional contracts concluded by physicians are specific. Indeed, these contracts must be compliant with ethical standards of the profession. As a professional authority, the College of physicians introduces obligations under which professionals have to stipulate several specific clauses and transmit their written contracts to the College, which controls their conformity. However, the normative power of these obligations is weak. To ensure the respect of ethical standards in professional contracts, soft law is more and more used by the College.