Introduction
Psychologists have a legal and ethical duty to safeguard the confidentiality of information concerning the clients in their care. Every patient deserves the right to know everything they share with their therapist will remain confidential, except in a few key areas where confidentiality may have to be broken. Therapy is built on a foundation of trust, and the first layer of that foundation is confidentiality, the protection of the client’s private information, and the agreement between the therapist and the client regarding that confidentiality.
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According to Gustafson and McNamara (1987), a central focus of therapy is the establishment of the relationship of trust between client and therapist, and it must be vigilantly protected during the course of the therapeutic practice. Without the conditional promise of confidentiality between the clinician and client, which allows the latter to make full and candid disclosure, the therapeutic alliance may be affected or harmed, and healing may be hindered. Therefore, it is the ethical obligation of psychologists to understand confidentiality within the therapeutic relationship, its limits, and what might occur when, and if confidentiality is broken.
Confidentiality Defined
Confidentiality is one of the most significant components of a therapeutic relationship. The therapist possesses the task of balancing the client’s rights with the legal and ethical obligation to protect client, as well as adhering to the legal and ethical standards of practicing therapy (Isaacs & Stone, 2001). Confidentiality has not changed much over the last few decades, in fact, Shah (1970) stated that a client should be able to use their privilege to guarantee that private communication will not be breached unless the information falls into the few specific categories which are mandated by law. After Shah, confidentiality has been more clearly defined within the APA Ethical Code, which now contains 31 ethical standards related to confidentiality, with 7 of those in the Confidentiality and Privacy Sections.
APA 4.01 (Ethical Code of Conduct) makes this statement regarding confidentiality: “Psychologists have a primary obligation and must take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limitations of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationships.” It is essential to recognize that confidentiality is not just limited to what is spoken aloud, but also pertains to what is written or typed. It is a therapist’s job to know what the ethical floor is regarding confidentiality but reach for the ethical ceiling.
A second important aspect of defining confidentiality is its limits. While each psychologist should have personal limits to confidentiality, the APA 4.02 mandates that there are certain instances when confidentiality must be broken. The Code dictates that before breaking confidentiality, the “Psychologists should discuss with persons and organizations with whom they establish a scientific or professional relationship (1) the relevant limits of confidentiality and (2) the foreseeable uses of the information generated through their psychological activities.”
This discussion should occur at the outset of said relationships, and the conversation should continue throughout therapy. Clients should be made aware prior to receiving therapy, that confidentiality will be broken in four cases: First, if there is an imminent danger to themselves or others, second, if there is any child or elder abuse, third, if there is any downloading, streaming, or accessing of media in which a child is engaged in a sexual act, and fourth, if there is a court order demanding a release of information. In all other cases, the therapist would need a release of information from the client before disclosing any information regarding the sessions.
It is imperative that the therapist communicates the parameters and limits of confidentiality clearly and confirms the client’s understanding. It would be considered unethical to enter into a therapeutic relationship with a client who does not thoroughly understand confidentiality.
Literature and Confidentiality
The majority of research regarding confidentiality has not been updated because it has not changed much over the years. However, two significant events occurred in 1996 that changed the way confidentiality functioned in therapy.
The first was Jaffee v. Redmond (“Jaffee v. Redmond,” 2015), which was a case regarding a police officer, Mary Redmond, who shot and killed a man named Ricky Allen. Redmond claimed that she did so to prevent Allen from stabbing another person. Allen’s family sued her for excessive force. After the shooting, Redmond was attending therapy and Allen’s family attempted to obtain the therapy records in hope they would support their suit. Redmond and her therapist, believing they possessed therapist-client privilege, refused to break confidentiality. Still, the trial court found that the Federal Rules of Evidence did not establish the right to confidentiality and instructed the jury they could draw negative conclusions from the therapist refusing to submit therapy notes. The jury found Redmond guilty, and the Allen family won a substantial amount of money. However, the Seventh Circuit court reversed the judgment and ruled that each state had some kind of therapist-client privilege and the Federal Rules of Evidence recognized that indirectly. Upon this reversal, the case was moved to the Supreme Court, at which time, the American Psychological Association intervened stating the importance of therapist-client confidentiality (“Jaffee v. Redmond,” n.d.). This landmark decision outlined the Supreme Courts recognition of the importance of a therapist’s duty to maintain confidentiality within the therapist-client relationship.
The second landmark decision to shape confidentiality was the creation of the Health Insurance Portability and Accountability Act (HIPAA). HIPAA was designed to ensure the security and confidentiality of patient information and data (“When was HIPAA Enacted,” 2019). Individuals determined further regulations regarding confidentiality were required as there were so many undefined areas.
These two events changed the course of confidentiality in the therapeutic relationship. They allowed for therapists to have the right to deny submitting session records unless the request has been court-ordered. These rulings strengthened the bond and trust between clients and therapists and provided for greater disclosure on the part of the client.
One key piece of literature that discusses all the various aspects of confidentiality is the book The Ethics of Conditional Confidentiality by Mary Alice Fisher (2013). In her book, Fisher goes over what Conditional Confidentiality means and how to follow it ethically. A vital feature of her writing is to help psychologists decide if they want to maintain absolute confidentiality or conditional confidentiality. Conditional confidentiality is when a therapist chooses to impose limits on confidentiality, as previously mentioned. However, absolute confidentiality implies a therapist will not disclose any information from the sessions, without exception. Absolute confidentiality is not something a therapist should take lightly. If one chooses this route, it cannot be broken when a situation seems complicated. If a therapist chooses to offer their client absolute confidentiality, they need to be sure they have adequate support in this decision, the ability to keep their promise, and most importantly, they are well educated regarding the consequences of refusing to divulge client information and/or records when requested to do so.
A second vital part of Fisher’s (2013) writing is her Ethics- Based Practice Model. She created this model to help put laws into ethical context. This model gives therapists the ethical freedom to create setting specific limits on confidentiality, as long as the clients are informed about these policies in advance and consent to accept them as a condition of receiving therapy. The model contains six steps for a therapist to follow, which are:
- Prepare,
- tell the truth upfront,
- obtain truly informed consent before disclosing information voluntarily,
- respond ethically to legal demands for disclosure,
- avoid the avoidable disclosures,
- and talk about confidentiality.
Step one: Preparing, means that a therapist should take things into consideration even before meeting their client for the first time. A therapist should understand the clients’ rights and the responsibility on behalf of those rights before beginning a session. It is imperative to know the laws that can help or hinder confidentiality in the therapeutic relationship. A therapist should be introspective about what confidentiality means to them, what limits to impose, and how they plan to uphold their values in a session while protecting the client. One should also develop a plan on how to act ethically when involuntary disclosure may be necessary. Lastly, a therapist must be prepared to discuss all of this in a language that is understandable to the client. One should not overwhelm or use technical jargon because the goal is to have the client understand what is confidential, what is not confidential, and feel comfortable disclosing any information.
Step two: Telling the clients the truth upfront is extremely significant, as unclear or inconsistent communication can break the trust and damage the therapeutic relationship. This, in turn, can hurt your practice as it may become known that you are not honest and go back on your word. Effectively telling the truth means informing clients of limits, explaining possible potential conflicts, and making sure the client agrees to the terms. A therapist should make sure that this conversation continues throughout therapy and adjust as needed. Confidentiality is not just a piece of paper or a simple agreement, but a journey to be made with the client throughout the therapy process.
Step three: Obtain truly informed consent before disclosing information voluntarily. This involves assuring the client comprehends precisely what information will be disclosed, discussing the implications of disclosing, documenting the client’s consent to the disclosure through a Release of Information form. Finally, be aware that although a client’s signature has been obtained this may not mean the client is truly informed about what will be discussed. Step three needs to be kept at the forefront of a therapist’s mind because clients have a fear of losing control over the process and they worry about having no say in the matter of disclosure (Jenkins, 2010). The therapist can eliminate this fear by providing clear communication regarding confidentiality.
Step four: Responding ethically to legal demands, which includes knowing how to disclose without harming the patient. The gold standard of therapy is always to do no harm, so one must understand the way to accomplish this task, both ethically and legally. One clarification important for therapists to know is that subpoenas are not court orders. This means that if a therapist is given a subpoena that was issued without a judge’s knowledge, then the therapist does not have the responsibility to disclose information. A therapist should always protect confidentiality rights to the extent legally possible and use protective laws when appropriate. If considering civil disobedience first determine there are no other available options.
Step five: Avoid the avoidable disclosures. Step five is fundamental because not only can a therapist be brought to court for unintentional breaches of confidentiality, it also damages the relationship between the client and therapist. It is not a therapist’s right to decide that disclosure is harmless just because they do not feel the client will be adversely affected. The core ways a therapist can avoid unintentional disclosures is by avoiding dual roles, protect client identity in presentations and consultations, prepare a professional will in the event of illness or death, maintain protective policies, and create boundaries with friends and family. Doing these things will limit the chances of unintended disclosures and better protect your client and their confidentiality.
Lastly, step six: Talk about confidentiality. This is probably one of the most significant steps in this model because if one cannot talk about it, how can one enact it? Talking about confidentiality-related issues allows the therapist to better develop their position and limitations. Confidentiality should never become a taboo topic but one that is openly discussed in consultation, during graduate courses, when making and enacting policies, and within the therapeutic relationship.
Confidentiality is the rule, and it is unethical for therapists to try and find rationalizations for making exceptions to this rule just to be able to disclose information (Fisher, 2013). Following this model will allow a therapist to better maintain confidentiality, ensuring there are no misunderstandings during sessions, research, and consultations.
Implications for Ethical Practice
Confidentiality as an ethical principle implies an understanding to not reveal anything about the client except under certain circumstances that are understood and agreed upon by both parties (Koocher & Keith-Spiegal, 2017). A therapist can act ethically in regards to confidentiality by instead of viewing it from the perspective of therapist self-protection; view it from the standpoint of protecting the patient first (Fisher, 2013).
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Confidentiality is implicitly expected when entering into a therapeutic relationship, and when that expectation and trust is broken, it leaves the client distraught and possibly in worse condition than when they began therapy. Due to lost confidence, many clients will take action, so as to make themselves feel better and to protect others from experiencing the same. When this happens, the therapist may have to face disciplinary action and appear before the court and have to try and justify why they broke confidentiality. If their explanation is not seen as appropriate, then the therapist may lose their license and be unable to practice. If the courts rule the breach of confidentiality as being illegal and unethical legal action may be taken against the therapist, they may face lawsuits because the confidentiality breach may be considered defamatory, business closure, and even incarceration. However, even if the aforementioned extreme results do not occur, any violation of confidentiality when not disclosed or approved by the client first leads to loss of respect and trust. Not only will you lose the respect and trust of your colleagues, but most importantly, you will lose it from your clients, for whom you are there to protect and create a safe environment. Many clients enter therapy after experiencing broken trust, the onset of distressing symptoms, or with the need to talk about their situation with an individual they can trust. When that trust is broken, it may serve as validation to the client that they are not worthy of trust and respect.
Psychologists must remember that confidentiality can change based on the setting and the client. Whether one is working with a group, a family, the elderly, an adult, adolescent, or child, the way confidentiality works will change. It is essential that the psychologist recognizes the differences and makes sure to adjust accordingly.
For these reasons, confidentiality is imperative to the health of the therapeutic relationship.
Conclusion
Maintaining confidentiality in a therapist-client relationship has been an ethical necessity for decades (Gustafson & McNamara, 1987). Such an agreement benefits the therapist, the client, the therapeutic relationship, and helps to foster trust and respect. One of the jobs of the psychologist is to balance what is legally mandated and what is therapeutically and ethically correct (1987). Ensuring the client fully understands the meaning and constraints of confidentiality will allow the therapist to maintain an ethical practice while simultaneously providing a safe and healing environment for the client. Remember the therapist who most often makes mistakes is not the one who takes reasonable, responsible action and can justify their behavior based on the legal and ethical standards, but the one who chooses to do nothing as they are afraid of making a mistake (McCrudy & Murray, 2003). Do not allow fear to dictate the parameters of your therapeutic relationship. Rather, be clear on the laws and ethical standards, by which psychologists are bound. Identify and know well, the best ways to compassionately and justly protect your client’s privacy, mental health, and well-being. Only after accomplishing these vital tasks, can one refer to themselves as an ethical practitioner.
References
Ethical Principles of Psychologists and Code of Conduct. (n.d.). Retrieved from https://www.apa.org/ethics/code/index.
Fisher, M. A. (2013). The ethics of conditional confidentiality: a practice model for mental health professionals. Oxford: Oxford University Press.
Gustafson, K. E., & Mcnamara, J. R. (1987). Confidentiality with minor clients: Issues and guidelines for therapists. Professional Psychology: Research and Practice, 18(5), 503–508.
Isaacs, M. L., & Stone, C. (2001). Confidentiality with minors: mental health counselors' attitudes toward breaching or preserving confidentiality. Journal of Mental Health Counseling, 23(4).
Jaffee v. Redmond, 518 U.S. 1. (n.d.). Retrieved from http://www.apa.org/about/offices/ogc/amicus/jaffee.aspx.
Jaffee v. Redmond. (2015, August 11). Retrieved from https://www.goodtherapy.org/blog/psychpedia/jaffee-v-redmond.
Jenkins, P. (2010). Having confidence in therapeutic work with young people: constraints and challenges to confidentiality. British Journal of Guidance & Counselling, 38(3), 263–274.
Koocher, G., & Keith-Spiegal, P. (2017, August 4). Necessary Secrets: Ethical Dilemmas Involving Cofidentiality . Retrieved from https://www.continuingedcourses.net/active/courses/course094.php.
Mccurdy, K. G., & Murray, K. C. (2003). Confidentiality Issues when Minor Children Disclose Family Secrets in Family Counseling. The Family Journal, 11(4), 393–398.
Shah, S. T. (1970). Privileged communications, confidentiality, and privacy: Confidentiality. Professional Psychology, 1(2), 159-164.
When Was HIPAA Enacted? (2019, February 19). Retrieved from https://www.hipaajournal.com/when-was-hipaa-enacted/.
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