16.1 Ethical Issues

Various mental health professionals had contact with Andrew Goldstein during the years that led up to his pushing Kendra Webdale to her death. Any mental health professional may at times have to balance ethical and legal obligations to a patient against the safety of others. Suppose Goldstein had confided to a mental health professional that he sometimes had impulses to hurt people—impulses that he felt he might not be able to control. How should the clinician treat such information? If Goldstein gave specifics about when, where, or with whom he was likely to become violent, would that affect how the clinician should treat such information? What is the clinician ethically bound to do in such instances? We address these questions in the following sections.

An Ethical Principle: The Role of Confidentiality

Different types of mental health professionals assess and provide treatment for psychological problems. Each profession has its own code of ethics, although all of the codes have some guidelines in common. (Websites containing the specific codes of ethics for the different types of mental health professionals are listed in TABLE 16.1.) The most important common feature is the ethical requirement to maintain confidentiality—not to disclose information about a patient (even whether someone is a patient) to others unless legally mandated to do so. The ethical principles and code of conduct of the American Psychological Association requires that mental health records remain confidential. In addition, the clinician must inform patients about the limits of confidentiality—that is, under what circumstances confidentiality may be broken.

A mental health clinician is bound by confidentiality, but each member of a couple participating in couples therapy is not.

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The principle of confidentiality appears to be straightforward, but some clinical situations are thorny and difficult to resolve. When a therapist is treating a couple, for instance, the therapist is bound by confidentiality, but each person in the couple is not; this means that each partner may tell other people about what transpires in therapy sessions. Similarly, in group therapy, although the therapist is bound by confidentiality, each member is not (although group members are asked not to talk about anything they hear from other members). However, when a patient is a minor (under 18 years of age), the clinician may inform the parents about information that the child has told the clinician. The clinician usually discusses the limits of confidentiality with a child old enough to understand them—or at least discusses possible circumstances in which the clinician may need to share information with parents or others.

In addition, the use of digital technology in therapy can lead to concerns about confidentiality (Klein, 2011; Van Allen & Roberts, 2011). For instance, the visits with a mental health clinician may also be part of a patient’s electronic medical records (Steinfeld & Keys, 2011), which may be seen by other health providers. In addition, if a patient contacts his or her therapist via e-mail, even if the therapist’s e-mail server is secure, the patient’s e-mail server may not be (and if the patient e-mails from work, the e-mails may remain the “property” of the employer). In such cases, despite the therapist’s best efforts to ensure confidentiality, their correspondence may not remain private. Similarly, when therapy is performed remotely—via the telephone, e-mail, or as a videoconference—the therapist cannot ensure confidentiality because at the patient’s locale, other people might be able to listen in or access the communication.

Congress passed the Health Insurance Portability and Accountability Act in 2002 (HIPAA; U.S. Department of Health and Human Services, 2002), and in doing so widened the set of circumstances under which confidential information could be shared with other individuals and organizations participating in the care or monitoring of a patient in order to improve patient care. No longer was the patient’s permission to share information with other health providers legally required. However, according to HIPAA, patients must provide specific written consent before clinicians can share separate notes from their psychotherapy sessions. Without such consent, the mental health clinician can share only limited information—such as the dates of treatment, the patient’s diagnosis and prognosis, and the medications prescribed—with other people or organizations involved in the treatment or monitoring of the patient.

Thus, through HIPAA, patients lost some control over the distribution of their health records (Appelbaum, 2002). The circumstances under which health care information can be shared without a patient’s consent (or even without the patient’s being told about it) now include the following (U.S. Department of Health and Human Services, 2002):

1. During litigation. The opposing lawyer in a lawsuit can request health information from a provider and must only state that he or she made reasonable attempts to notify the patient about the request for information. During litigation, lawyers can even request the medical records of witnesses!
2. When the person is a police suspect. Police officers can request health information about a suspect without having a warrant or being under any judicial oversight.
3. Marketing efforts by health providers (and their business associates) to patients. For instance, if a community health center were initiating a therapy group for people with depression, the center would be able to send a brochure about the group to patients currently receiving treatment at the facility.
4. Research. When investigators have approval for a study that uses patients’ medical records, the investigators may have access to those records without the patients’ explicit permission.

However, unless information is shared specifically to facilitate treatment, the law specifies that the provider should disclose only the minimum necessary information.

States usually have laws to protect confidentiality. However, most states have exceptions to those rules. Typically, confidentiality can be violated in certain situations:

• when a patient gives the clinician permission to violate confidentiality, for example by explicitly giving permission to a therapist to speak to the patient’s spouse;
• when a clinician has reasonable cause to suspect abuse of children, of elderly people, or of disabled people. In such cases, the clinician usually must report the suspected abuse to the appropriate authorities so that steps can be taken to protect those who cannot otherwise protect themselves;
• when a clinician has reasonable cause to believe that a patient is likely to harm himself or herself significantly or to attempt suicide. In this situation, the clinician must take steps to protect the patient; and
• when a clinician has good reason to believe that a patient is likely to inflict significant harm on a specified other person. In this case, the clinician must take steps to protect that other person.

Thus, a clinician should not have violated Goldstein’s confidentiality if he spoke in generalities about his violent urges. Even if Goldstein had said that he had violent impulses that he couldn’t control when in subway stations or when around blond-haired women, such a statement would probably not be viewed as posing a specific enough danger to violate confidentiality. However, the clinician would have been legally compelled to violate Goldstein’s confidentiality if he had specifically named Kendra Webdale as someone he planned to harm.

Confidentiality is an ethical term. A related legal term, privileged communication, refers to confidential information that is protected from being disclosed during legal proceedings. Just as a priest cannot legally be compelled to reveal what was said by a parishioner in the confessional, the Supreme Court has ruled that communication between a patient and a therapist is privileged (Jaffee v. Redmond, 1996; Mosher & Swire, 2002). However, not all confidential information is privileged and vice versa.

The term confidentiality refers to the ethical requirement not to disclose information about a patient; in contrast, privileged communication is a legal requirement that refers to confidential information that should not be disclosed during a legal proceeding. There are some circumstances in which mental health clinicians are legally obligated to violate confidentiality, and thus the communication is not privileged.

AP Photo/Amanda Smith

The person who shared information with the clinician is usually the one who decides whether it can be revealed, but others can make this decision in certain circumstances. For example, if a judge orders that a defendant must undergo a mental health evaluation, as happened to Goldstein after he was taken into custody, the communication between the mental health clinician(s) doing the evaluation and the defendant may not be considered privileged in some courts, depending on the jurisdiction (Meyer & Weaver, 2006; Myers, 1998). In such a circumstance, in order to comply with the law and behave ethically, the mental health clinician should explain to the defendant at the very beginning of the evaluation that anything said to the clinician may be disclosed to the judge. Whenever the law regarding privileged communication conflicts with the ethics of confidentiality, patients should be told of the limits of confidentiality as soon as possible (Meyer & Weaver, 2006).

Another type of exception to the laws governing privileged communication occurs when a patient (or former patient) initiates a civil lawsuit against another party and raises the issue of personal injury with mental health consequences as part of the suit. An example of this type of case would be one in which a woman sues her employer for anguish that resulted from harassment at work. In these sorts of lawsuits for personal injury, the mental health clinician is legally bound to testify if his or her testimony is relevant to the case (Bartol & Bartol, 2004).

It is not always clear who owns a privileged communication about information revealed during group therapy. In this situation, the therapist may not be compelled to testify about what transpired, but group members may be. At present, judges decide on a case-by-case basis whether a therapist must testify, depending on the specific circumstances (Meyer & Weaver, 2006).

Informed Consent to Participate in Research on Mental Illness: Can Patients Truly Be Informed?

Can someone who is mentally ill give truly informed consent to participate in psychological research pertaining to his or her disorder? People who have anxiety disorders may be able to understand fully the research procedure and possible adverse effects, but what about people with schizophrenia? Are such patients’ mental processes impaired to the extent that their consent isn’t really informed? What about people who are having a first episode of psychosis and agree to participate in a study before the psychotic episode has abated?

The general rule of thumb for researchers is that potential participants must be capable of understanding and reasoning about what they are consenting to (Meyer & Weaver, 2006). Thus, the ability to understand and reason about the research procedure may be more important to informed consent than whether the person is psychotic at the time of consent (Kovnick et al., 2003; Misra & Ganzini, 2004).

Researchers are developing ways to ensure that patients who may be cognitively impaired by a psychological disorder adequately understand the benefits and risks of their participating in research. For instance, Wirshing and colleagues (2005) developed an educational video to increase awareness about informed consent among patients with schizophrenia. Among other points, the video explained that participants can withdraw from the study at any time. Researchers continue to develop and assess methods to ensure that participants give truly informed consent to participate in research (Eyler et al., 2005).