Kampf, A., McSherry, B., Rothschild, A., & Ogloff, J. (2010). Ethical decision-making in confidentiality dilemmas. In Confidentiality for mental health professionals (pp. 93-116). Australian Academic Press.
Lack of awareness or misunderstanding of an ethical standard is not itself a defence to an allegation of unethical conduct. (Australian Psychological Society, Code of Ethics, p. 10)
As any mental health professional knows, it is one thing to review ethical and legal principles in the abstract and quite another to rely on them to make decisions when actual situations arise. The appropriate course of conduct and decision-making is governed by a variety of influences, including legal principles and ethics codes. Samuel Knapp and Leon VandeCreek (2003), in introducing their book on the 2002 revision of the American Psychological Association’s Ethics Code, state: ‘Ethics Codes of professions are, by their very nature, incomplete moral codes’ (p. 7). Drawing on the information covered so far in this book, the aim of this chapter is to move from the abstract to the concrete, and in so doing model decision-making processes for mental health professionals to assist them in dealing with issues pertaining to confidentiality. To achieve this aim, two situations are identified in which mental health professionals face ethical dilemmas in relation to client or patient confidentiality.
The first situation pertains to a request for a psychiatrist to release information about a patient to the patient’s employer. In the second case, the clinician wrestles with issues pertaining to the patient’s risk of harm to third parties. Once the cases have been presented, information is provided to work through the dilemmas using a model for ethical decision-making presented in Figure 7.1. It is hoped that these exercises will assist mental health professionals to incorporate a systematic decision-making framework in their consideration of confidentiality-related ethical dilemmas. The exercises will also provide a good opportunity to learn how the principles that have been discussed throughout this book apply to actual dilemmas.
It is necessary to note a few general matters before proceeding. First, by their very nature, ethical dilemmas may not always have a single ‘correct’ outcome. Rather, some number of alternatives will inevitably arise to address such matters. Each alternative will have strengths and weaknesses. It is incumbent upon mental health professionals, therefore, to explore the options available and to evaluate the consequences and implications of each one before deciding how to proceed.
While it is possible that the decision reached by the mental health professional ends up being the ‘wrong’ decision, it is far worse, legally and professionally, to be negligent by not having gone through a careful decision-making process before arriving at a decision.
Second, as has been the case throughout this book, the challenge exists to state both principles that cover the law and ethical principles relevant to the different mental health professionals across different circumstances. As always, it is incumbent upon mental health professionals to be familiar with the code of ethics and their underlying values and principles governing their professions when considering ethical matters. Moreover, it is helpful for mental health professionals to have a working understanding of the relevant legal principles pertaining to confidentiality to guide their practices. The previous chapters have set out the relevant ethical and legal principles. As always, though, the information provided in considering the ethical dilemmas in this chapter is general in nature.
Third, it is important and helpful to seek professional advice from colleagues, superiors, professional bodies, indemnity insurers and legal counsel to assist in decision-making. Of course, time permitting, the more serious the situation, the longer the consultation should be. It is also prudent to document the information and advice received.
Mental health professionals, who may be highly skilled and knowledgeable in their fields, often approach matters that require ethical decision-making in an unsystematic and unsophisticated manner. Very often, by using a systematic model of decision-making, the most appropriate resolution of ethical dilemmas becomes apparent.
In reviewing a number of different ethical decision making models for mental health professionals, Samuel Knapp and Leon VandeCreek (2003) identify five steps shared by the various approaches:
- Identification of the problem;
- Development of alternatives;
- Evaluation of alternatives;
- Implementation of the best option; and
- Evaluation of the results.
In addition to these steps, Knapp and Vande-Creek propose that additional steps or factors are required to deal with emotional and situational factors, and point to the need for an immediate response in emergency situations. With respect to decision-making in emergency situations, the authors wisely suggest that mental health professionals should anticipate the sorts of ethical situations that may arise and develop ethical action plans to implement should the need arise. Without such already-established plans it may be too late or difficult to reasonably consider alternatives prior to needing to act in an emergency situation.
A useful model for decision-making that will be employed in this chapter is based on the model developed by Shane Bush, Mary Connell and Robert Denny (2006) as well as the work of the Canadian Psychological Association (2001). Drawing on the work of Knapp and Vande-Creek (2003), Bush, Connell and Denny incorporate the five general steps noted above into their model. In addition, they outline the following three steps:
- Consider the significance of the context and setting;
- Identify and use ethical and legal resources; and
- Consider personal beliefs and values.
The Canadian Psychological Association (2001) adds that the individuals and groups potentially affected by the decision should be identified and that the problem should be construed in accordance with the relevant ethical issues and practices being considered. Incorporating all of these steps, the model to be used in this chapter is presented in Figure 7.1. The steps will be defined as the example cases are resolved.
In this section, two sample cases are presented. More detail will be provided as we work through the first case since this provides the first opportunity for practical application of the information pertaining to confidentiality reviewed throughout this book. Less detail will be required in the second case since the overarching principles will have been addressed in greater detail in the initial case.
For both case scenarios, Figure 7.1 should be referred to in order to see how the decision-making model and the questions posed throughout it are employed to guide the decision-making process. The aim of these exercises is to help you apply the information from this book in order to resolve actual dilemmas that may arise in your own practice.
Case 1: Requests for Obtaining Confidential Client Information
When Belinda was 17 years old she was admitted to the local Child and Adolescent Mental Health Service. Her parents reported that she was acting strangely, believing things that were not true. She was paranoid, became estranged from her friends and was reclusive. Upon examination, she was diagnosed with a psychotic illness not otherwise specified. Over time, the psychiatrist who treated her, Dr Waters, believed she had experienced the first episode of a schizophrenic illness. Belinda was in hospital for three weeks. Her symptoms stabilised and she was able to return home. She continued to see the mental health service on an outpatient basis. In the intervening two years, Belinda was hospitalised on three occasions. From the time she was 19 years old until she was 23, she had no further periods of hospitalisation, but was treated by Dr Waters on an outpatient basis.
Belinda was well enough to work and she obtained employment as a clerk in a department store. Things went well for her for several months and she was promoted to a supervisory position. Soon after, she began to deteriorate. She was once again paranoid and was unable to go to work. When she missed work, she obtained a medical certificate from Dr Waters, in-dicating she was unwell. As is the usual case, Dr Waters did not write the nature of Belinda’s illness on the note; however, the letterhead on which the note was written indicated that Dr Waters was a psychiatrist.
When Belinda returned to work, the human resources manager asked to see her. Given that Belinda had acted strangely at work before she took time off, the human resources manager wanted to ensure she was fit to work. Belinda assured her that she was but declined to discuss the nature of her illness. She returned to work.
From the medical certificate Belinda provided, the human resources manager knew that she had been in the care of a psychiatrist. To allay her concerns, the manager telephoned Dr Waters, having obtained the telephone number from the certificate. The human resources manager told Dr Waters that Belinda worked for the store and that she was concerned about her capacity for work. The manager stated further that if she could not confirm that Belinda was fit to work, the store would be forced to let her go. Dr Waters wanted to be supportive of Belinda to help her keep her job.
How should the psychiatrist proceed?
Drawing on the decision-making model outlined above, Case 1 will be analysed and resolved below.
Defining the Problem
The first four steps of the decision-making model provide an opportunity for the clinician to carefully define the nature and scope of the problem, as well as identify the resources necessary and available to assist them in resolving the dilemma. Each of these steps will be reviewed in turn.
Step 1: Identify the Individuals and Groups Potentially Affected by the Decision
In this dilemma, first and foremost Belinda, as the traditional patient or client, will be affected by Dr Waters’ decision. Second, Belinda’s employer may be affected by the decision. Third, Dr Waters will of course be affected by the decision and what she decides could affect the therapist-patient relationship she has with Bel-inda. Finally, although it is not specified in the scenario description, other individuals such as Belinda’s family members or dependents may be affected by Dr Waters’ decision.
Step 2: Identify the Problem, Including the Relevant Ethical and Legal Issues and Clinical Practices
Given that this book focuses on confidentiality, it almost goes without saying that confidentiality is the central ethical and legal issue in this and all of the other scenarios. Specifically, though, the ethical issue is whether Dr Waters should share information regarding her opinion of Belinda’s capacity to work with the human resources manager. The legal issue is whether the information Dr Waters has regarding Belinda’s health is protected under the state privacy legislation and, if so, whether and under what circumstances the information may be shared with the manager.
Step 3: Consider the Significance of the Context and the Settings
The situation is one in which the human resources manager is requesting information that is not consistent with the purpose for which it was initially collected – that is, for the health care of Belinda. The context in which the manager is seeking the information is highly unusual. To the extent that the employment is important to Belinda, however, the situation is significant. It is also worth noting that this situation is not an emergency.
Step 4: Identify and Use Relevant Legal, Ethical and Professional Resources
Dr Waters has a number of resources at her disposal:
- The relevant ethics code provisions:
- ‘Psychiatrists shall hold clinical information in confidence’ (The RANZCP Code of Ethics, Principle 4);
- ‘Confidentiality cannot always be absolute. A careful balance must be maintained between preserving confidentiality and the need to breach it rarely in order to promote the patient’s best interests and/or safety and welfare of other persons’ (The RANZCP Code of Ethics, Principle 4.5).
- The relevant Privacy Act and any other related Acts (e.g., Health Records Act) in her state;
- She can raise the matter with colleagues for advice;
- She can contact her medical indemnity insurer for legal advice; and
- She can consult a lawyer.
For the purposes of these exercises, it is assumed that in the information gathering phase, mental health professionals will have had an opportunity to explore their options for action with the various people noted above, and that they will have relied on the other resources as well.
Considering Options
Step 5: Develop and Consider Alternative Solutions to the Problem
The Step 5 requires the clinician to begin to consider the alternative solutions to the dilemma. In demonstrating this process, we will review the relevant principles as we discuss the possible courses of action that Dr Waters may choose to follow.
Alternative 1: Do Not Disclose the Information
The general rule in considering matters pertaining to confidentiality is that the information obtained in the course of a clinical service is confidential. As such, the clinician must not share information about the patient or client, or even acknowledge that the individual is or has been their patient or client. As the ethical principles quoted above make clear, however, ‘confidentiality cannot always be absolute’. Thus Dr Waters will need to determine whether Belinda’s situation is such that an exception to the general rule might apply.
The usual circumstances in which confidential health care information may be shared occur when the purpose for sharing the information is consistent with the reason the information was initially obtained. In Belinda’s situation, she has obtained psychiatric care from Dr Waters to treat her psychiatric illness. Given that the request by the human resources manager to obtain information about Belinda’s care is to satisfy employment demands, the request is not consistent with the original purpose for which the information was obtained. Using this rationale, the first alternative is for Dr Waters to refuse to share the information with the human resources manager. Moreover, since the clinical relationship between Dr Waters and Belinda is confidential, Dr Waters may decide not to even acknowledge that Belinda is her patient.
Based on this alternative, Dr Waters may respond to the human resources manager: ‘I am not in a position to even confirm that the person you are asking about is a patient of mine and certainly I would be unable to disclose any information to you about her, even if she was a patient of mine.’
The risk of this course of action is that Belinda may end up losing her employment because the human resources manager has not been assured that Belinda is fit to work. The benefit, however, is that Dr Waters will have protected Belinda’s privacy by not revealing any information about the therapeutic relationship or any health information about Belinda. Moreover, by Dr Waters holding Belinda’s information in confidence, she will ensure that Belinda trusts her, which will in turn protect the therapeutic relationship.
In this scenario, Dr Waters has been providing psychiatric care to Belinda for several years; therefore, she will doubtless want to help Belinda. As such, it may be tempting to engage in a dialogue with the human resources manager to help protect Belinda by saving her job. Thus it will be tempting to share relevant information in a way that would serve to help Belinda maintain employment.
Alternative 2: Share the Information
While the first alternative may initially seem to be the only ‘correct’ course of action, the matter is perhaps more complicated than it first appears. Indeed, the language from the ethical principles for psychiatrists is somewhat broad, providing that ‘A careful balance must be maintained between preserving confidentiality and the need to breach it rarely in order to promote the patient’s best interests and/or safety and welfare of other persons’ (The RANZCP Code of Ethics, Principle 4.5). Dr Waters may need to ask whether it is in the ‘best interests’ of Belinda or other persons that she lose her job.
Further, it may be argued that Belinda waived her right to complete confidentiality when she requested that Dr Walters prepare the medical certificate that she submitted to her employer (that is, she implicitly consented to share information indicating that she was unwell and being treated by a psychiatrist). This is particularly the case since the letterhead indicated that Dr Waters is a psychiatrist. However, the information in the letter was limited in scope so that the extent to which the confidential information was shared was also limited.
Dr Waters is concerned that Belinda may lose her job, which has been an important part of her recovery. She realises that the human resources manager was calling to follow-up the medical certificate she completed. In this alternative, if she believes that it is in Belinda’s best interests not to lose her job, Dr Waters may elect to provide information to the human resources manager to assure her that Belinda is fit for work. A complication would occur, of course, if Dr Waters does not believe that Belinda is fit for work and that the work would detrimentally affect her psychiatric wellbeing.
The risk with this course of action is that by electing to communicate with the human resources manager about Belinda, Dr Waters has violated Belinda’s confidentiality. The benefit with this alternative is that Dr Waters believes she is protecting Belinda’s employment.
Dr Waters’ beliefs and values will influence her decision-making. It is apparent that she is balancing her obligation to protect Belinda’s privacy and the confidentiality of her treatment against the need to assure the human resources manager that Belinda is able to work, despite her illness.
Alternative 3: Compromise by Deferring the Decision to Belinda
Drawing on the need to balance two or more competing interests, which is typical in resolving ethical dilemmas, Dr Waters may contemplate a third alternative, one that offers a compromise to the first two courses of actions discussed. For this alternative, Dr Waters realises that she owes a duty of confidentiality to Belinda and that to share any information with the human resources manager may be seen as a violation of that duty. Although she did prepare the medical certificate, at Belinda’s request, Dr Waters took care not to state the nature of the illness. From the letterhead the human resources manager discovered that Belinda was being treated by a psychiatrist, but that was the limit of the confidential information that was shared to that point.
The human resources manager clearly has concerns about Belinda’s fitness to return to work. Therefore, Dr Waters may decide that since Belinda essentially holds the right of confidentiality, it must be her decision whether to allow Dr Waters to share any information with the manager. The extent to which patients value confidentiality varies, and it likely varies across situations as well. For example, while people may share confidential information with their friends, they may choose not to do so with their coworkers or employers. Therefore, it is always prudent, if possible, to check with patients to obtain an explicit indication of the value they place on confidentiality in particular situations.
For this third alternative, Dr Waters may decide to let the human resources manager know that she is unable to discuss any information pertaining to Belinda without first contacting her to seek her consent. Dr Waters could then contact Belinda to let her know that the human resources manager has been in touch. Dr Waters could engage Belinda in a dialogue about what, if any, information should be shared with the manager. They could agree on the limitations of confidential information that would be shared. For example, they could agree that Dr Waters would not reveal that Belinda has been diagnosed with schizophrenia or how she is being treated. Assuming Dr Waters believes that Belinda is now fit for work, they could agree that Dr Waters simply inform the human resources manager that Belinda has been in her care but has now recovered and is able to work. They could also agree that Dr Waters could further inform the manager that she will continue to see Belinda to assist her in maintaining her wellbeing. Dr Waters could also suggest that the manager contact Belinda to discuss the matter directly with her.
It is the case with this alternative that should Belinda decide she does not consent to Dr Waters sharing any information about her, Dr Waters will have to respect her wishes and not provide any information to the human resources manager.
This course of action minimises the risk of Belinda losing her job since the human resources manager could be assured that she is fit for work. Similarly, this alternative reduces or eliminates the risk of Dr Waters violating Belinda’s right to confidentiality by revealing confidential information to the human resources manager without her consent. The benefit of this course of action is, therefore, that Belinda is likely to maintain her employment, assuming the human resources manager is content with the information shared by Dr Waters, with the minimum disclosure of Belinda’s confidential health care information. Moreover, given protections afforded under legislation to people with disabilities, including mental illnesses, it would be difficult for the employer to dismiss Belinda due to a mental illness, as long as she was able to satisfactorily carry out her employment duties.
For this course of action, Dr Waters’ feelings of obligation to her patient can be respected while still helping to achieve the goal of assisting Belinda to maintain her employment.
Step 6: Choose the Most Appropriate Outcome
Alternative 3 appears to be the most appropriate course of action, particularly where the psychiatrist believes that Belinda is fit for work. This alternative allows the psychiatrist to share a limited amount of information, as agreed to by Belinda, to help preserve Belinda’s employment. As such, the confidential information Belinda does not want shared – including, perhaps, the nature of the illness and other personal details – is held in confidence. Yet, enough information is shared with the human resources manager to hopefully preserve Belinda’s employment.
Monitoring
Step 7: Monitor and Assess the Outcome Chosen
Having decided to proceed with the third alternative described above, Dr Waters would need to begin to implement the plan. She would need to contact Belinda and explain the options available to her. Assuming Belinda would consent to Dr Waters sharing the limited information with the human resources manager, Dr Waters could then contact the manager. Dr Waters would need to monitor whether the limited information Belinda has agreed to share – that she has a mental illness for which she has been successfully treated, that Dr Waters believes she is fit for work and that Dr Waters will continue to treat and monitor her – would satisfy the human resources manager at this point. If not, Dr Waters will need to reconsider her decision.
Resolving the Problem
Assuming Belinda and the human resources manager are satisfied with the planned course of action, the ethical dilemma should be resolved satisfactorily.
Step 8a: Consider the Need for an Ethical Action Plan or Practice Modification
Dr Waters would need to consider that when patients request medical certificates or letters for employers, they should be informed of the possibility that the employer may then learn that they have been in the care of a psychiatrist. This would hold true for other mental health professionals as well. In many circumstances, the patient could then opt to ask a general practitioner to prepare the certificate, given that most often the general practitioner and specialist mental health professional will be in communication about the patient’s situation. If the pa-tient does not mind the employer learning that they have been cared for by a mental health professional, then the mental health professional should discuss with the patient the nature of information to be shared in the medical certificate or note.
Step 8b: Repeat Steps 5-7
Steps 5 to 7 would need to be revisited if in the course of implementing or monitoring the situation Dr Waters realised that the plan was unsuccessful or inappropriate.
Case 2: Divulging Confidential Information to Protect Third Parties
Sebastian was a voluntary patient at the local Community Mental Health Service where he was seen regularly by Dr Suresh, a clinical psychologist. Sebastian was 31 years old and had a history of psychiatric illness. He received a disability support pension and lived in supported accommodation. While Sebastian had a history of making threats and becoming enraged, the psychologist did not believe that he had ever assaulted anyone. Similarly, although he was uncertain, the psychologist did not believe that Sebastian had a criminal history. Sebastian had a history of self-harm, including an occasion 18 months ago when he was rescued by staff after cutting his wrists and overdosing on benzodiazepines.
Dr Suresh found that, over the past three months, Sebastian was finding it increasingly difficult to control his anger. In particular, he was making threats to harm others. While the threats were diffused, he had targeted a young man, Adam, who had been living in the same accommodation until two weeks ago.
On the most recent occasion that Dr Suresh saw Sebastian, he was guarded on interview and initially downplayed the level of anger and distress he was experiencing. He exhibited delusional thinking, believing that others had targeted him and were conspiring against him. This was consistent with his past history of symptoms while he was unwell, although Sebastian had not verbalised such thoughts for more than two years.
Consistent with previous paranoid thinking, Sebastian expressed the belief that some co-residents were ‘spies’, placed there to monitor him. Over time, he admitted that he felt as though he was ‘at the end of his rope’ and ready to give up. He felt he was destined to end his own life. Again, this was consistent with previous suicidal thinking evidenced by Sebastian. However, unlike previous occasions, Sebastian discussed a desire to ‘take someone with him’ this time. When Dr Suresh queried this thinking, Sebastian replied that ‘they’ had caused him so much pain, he wanted them to know how he felt when he was targeted. Initially Sebastian denied having any particular person in mind. When pressed, though, Sebastian named the young male co-resident Adam, whom he had previously targeted.
Dr Suresh employed the HCR-20 violence risk assessment measure (Webster, Douglas, Eaves, & Hart, 1997) to assist with determining Sebastian’s level of risk for engaging in violence. Based on the information available, Dr Suresh formed the belief that at the present time he posed a high risk of harm to others and, in particular, to the co-resident Sebastian named Adam.
How should the psychologist proceed?
Defining the Problem
As discussed with Case 1, the decision-making model requires the clinician to carefully define the nature of the dilemma, including the significance and context of the situation. These initial steps also make mental health professionals evaluate the legal, ethical and professional resources available and required to resolve the dilemma.
Step 1: Identify the Individuals and Groups Potentially Affected by the Decision
Dr Suresh has an ongoing, voluntary, therapeutic relationship with Sebastian. As such, Sebastian will be clearly affected by Dr Suresh’s decision. The former co-resident whom Sebastian has targeted may also be affected by Dr Suresh’s decision. As always, the clinician, Dr Suresh, will be affected by the decision, particularly in light of his relationship with Sebastian.
Step 2: Identify the Problem, Including the Relevant Ethical and Legal Issues and Clinical Practices
Although the case pertains – broadly speaking – to confidentiality, the narrow ethical issue to be addressed in this scenario is whether Dr Suresh should use information held in confidence to try to ‘protect’ the third party, Adam. There is a related legal issue: could Dr Suresh and/or the mental health service for which he works be civilly liable should he decide to protect Sebastian’s confidentiality and Sebastian attacks and injures Adam? Conversely, there is a risk that Sebastian might take legal action against Dr Suresh and the mental health service if Dr Suresh decides to violate his confidentiality, and Sebastian believes it was wrongfully done. However, if Dr Suresh warns Adam or takes any measures to control Sebastian, Sebastian might lose his trust in Dr Suresh and no longer talk with him about why he is experiencing anger and distress.
Step 3: Consider the Significance of the Context and the Settings
Given Dr Suresh’s conclusion that ‘at the present time he posed a high threat of harm to others and, in particular, to the co-resident Sebastian named – Adam’, the situation is serious. Indeed, Sebastian may cause harm to Adam or to someone else. Of concern as well is that should Dr Suresh violate Sebastian’s confidentiality, their therapeutic relationship may be irrevocably harmed. The context is that Sebastian has been deteriorating and has expressed suicidal and homicidal ideation. This is in light of Sebastian’s ongoing psychiatric illness.
Step 4: Identify and Use Relevant Legal, Ethical and Professional Resources
In this situation, Dr Suresh may consider the following:
- The relevant Australian Psychological Society ethics code provisions, which are as follows:
- ‘Psychologists safeguard the confidentiality of information obtained during their provision of psychological services’ (The APS Code of Ethics , Standard A.5.1)
- ‘Psychologists disclose confidential information obtained in the course of their provision of psychological services only under any one or more of the following circumstances … (c) if there is an immediate and specified risk of harm to an identifiable person or persons that can be averted only by disclosing information’ (The APS Code of Ethics, Standard A.5.2)
- ‘Psychologists inform clients at the outset of the professional relationship, and as regularly thereafter as is reasonably necessary, of the: (a) limits to confidentiality; and (b) foreseeable uses of the information generated in the course of the relationship’ (The APS Code of Ethics, Standard A.5.3)
- ‘When a standard of this Code allows psychologists to disclose information obtained in the course of the provision of psychological services, they disclose only that information which is necessary to achieve the purpose of the disclosure, and then only to people required to have that information’ (The APS Code of Ethics , Standard A.5.4)
- ‘Psychologists ensure consent is informed by: … (h) explaining confidentiality and limits to confidentiality’ (The APS Code of Ethics, Standard A.3.3)
- The Privacy Act in his State
- Raising the matter with colleagues for advice
- Contacting his professional indemnity insurer
- Consulting a lawyer, including the legal department representing the mental health service.
Once again, for the purposes of these exercises, it is assumed that Dr Suresh will have had an opportunity to explore his options for action with the various people noted above, and that he will have relied on the other resources as well.
Considering Options
Step 5: Develop and Consider Alternative Solutions to the Problem
For the first alternative course of action, it is al-ways useful to consider the effect of maintaining confidentiality. As indicated above, the general principle regarding confidentiality, as reflected in The APS Code of Ethics, is that ‘(p)sychologists safeguard the confidentiality of information obtained during their provision of psychological services ‘(Standard A.5.1). Adhering to this general rule, Dr Suresh might choose to continue treating Sebastian with the aim of helping him to manage his risk through treatment. Based on this alternative, Dr Suresh may wish to increase the frequency of his contact with Sebastian to help manage the risk.
.The risk of this course of action, obviously, is that Sebastian may end up causing harm to someone, particularly Adam. Because Dr Suresh has recognised that Sebastian poses a ‘high risk’ of causing harm to others, he may feel professionally responsible for not doing more to protect others, and for ensuring that Sebastian does not detrimentally affect his own life by harming others. In addition, as pointed out in chapter 5, although there is no common law ‘duty to protect’ third parties in Australia, it is conceivable that given the right set of facts, a court could find that a therapist is liable for the harm that ensues as a result of the foreseeable actions of a psychiatric patient.
While it is possible that some risks might arise from Dr Suresh’s decision to maintain confidentiality and to continue to treat Sebastian, some possible benefits might also unfold. In particular, Dr Suresh will be able to maintain a therapeutic relationship with Sebastian. This relationship, and the treatment that Dr Suresh could provide, might serve to reduce Sebastian’s level of risk while helping to ensure a stable, long-term therapeutic relationship. Finally, Dr Suresh’s decision to maintain confidentiality is consistent with The APS Code of Ethics, which does not require a psychologist to share confidential information to protect third parties, but allows them to do so.
Dr Suresh will doubtless have a desire to preserve the therapeutic relationship with Sebastian. How-ever, in trying to preserve the relationship, he may be overly confident in his ability to monitor Sebastian and prevent him from causing harm to a third party. Thus, Dr Suresh will need to keep an open mind about the likelihood that he will be able to provide adequate treatment and monitoring to manage Sebastian’s risk. Dr Suresh will also need to consider his own attitudes towards the police and other relevant authorities in deciding how to proceed.
Alternative 2: Share the Information to Protect Third Parties
Dr Suresh could consider taking steps beyond ongoing treatment to reduce Sebastian’s risk of harming Adam, or other people. To accomplish this, he may consider breaching information held in confidence to try to contain the level of risk that he believes Sebastian presents, thereby protecting Adam. To this end, Dr Suresh may elect to contact the police or other authorities to share his concern that Sebastian may harm others. In addition, he may decide to try to contact Adam to let him know that he may be targeted by Sebastian for harm.
When deciding to undertake this course of action, Dr Suresh would need to consider whether he is in fact violating Sebastian’s confidentiality. For example, The APS Code of Ethics, Standard A.3.3, requires that ‘(p)sychologists ensure consent is informed by: … (h) explaining confidentiality and limits to confidentiality’. Moreover, The APS Code of Ethics, Standard A.5.3, provides that ‘ (p)sycholgists inform clients at the outset of the professional relationship, and as regularly thereafter as is reasonably necessary, of the: (a) limits to confidentiality; and (b) foreseeable uses of the information generated in the course of the relationship’.
In accordance with these standards, if Dr Suresh informed Sebastian as part of the initial informed consent process that he may need to share confidential information should Sebastian present a risk of harm to identified third parties, then electing to share the information to protect the third party will not be seen as an improper breach of confidentiality. This is particularly true if Dr Suresh reiterated the fact that the information discussed may not be held in confidence once Dr Suresh commenced evaluating Sebastian for the purpose of the risk assessment.
Specifically, The APS Code of Ethics, Standard A.5.2, considers the grounds upon which information may be disclosed by psychologists as follows:
(p)sychologists disclose confidential information obtained in the course of their provision of psychological services only under any one or more of the following circumstances… (c) if there is an immediate and specified risk of harm to an identifiable person or persons that can be averted only by disclosing information.
Thus, to disclose the confidential information to the police and/or to Adam (if Dr Suresh can contact him) requires Dr Suresh to be satisfied that not only is there a high risk of harm, but that the harm is ‘imminent’, the third party to be protected is identified and the risk of harm can only be averted by the psychologist disclosing the information.
Finally, once the psychologist makes a decision to share the confidential information, the psychologist must ‘disclose only that information which is necessary to achieve the purpose of the disclosure, and then only to people required to have that information’ (The APS Code of Ethics, Standard A.5.4). As such, Dr Suresh might inform the police of something similar to the following:
I am a psychologist employed by X service. I have a patient, Sebastian [surname], whose behaviours have been escalating and I believe he presents a high risk of harming an identifiable person (Adam [surname]). He has a mental illness that is contributing to this condition. As a result, it is my opinion that he may harm someone, most likely Adam, whom he has targeted.
In addition to the above, the psychologist could share details about the patient’s address, but must not share information about the particular nature of Sebastian’s mental illness or any other information obtained in confidence that is not relevant for the police to assist with Dr Suresh’s request to help protect Adam.
There are a number of risks associated with this course of action. First, it is questiona-ble what the police would be able to achieve. While they do have powers under all of the state and territory mental health Acts to apprehend people who they believe are mentally ill and require treatment to protect them from harming themselves or others, police have few other options for how to proceed in cases where people are making vague threats to harm others. Second, Sebastian may become angry with Dr Suresh and refuse to continue to see him therapeutically. Similarly, Sebastian’s trust in mental health professionals, generally, may be affected. Third, although Dr Suresh has judged Sebastian as being a high risk of harming others, that does not mean Sebastian will actually end up harming anyone. Thus, the therapeutic relationship – and Sebastian’s confidence in mental health professionals – may be jeopardised unnecessarily. Finally, should Dr Suresh decide to share some of the confidential information pertaining to Sebastian, Sebastian may make a complaint, or take legal action, against Dr Suresh for breach of confidentiality.
The benefit of this action is that Dr Suresh may be able to help Sebastian contain his level of risk by having the police become involved. This, in turn, may help to protect Adam, assuming Sebastian would have engaged in violent or threatening behaviour against him. Moreover, this course of action would be in accordance with Dr Suresh’s ethical obligations.
Dr Suresh will need to monitor his own beliefs, values and biases to help ensure that his decision to disclose confidential information is made independent of his own biases. For example, he will need to consider whether his decision to share the confidential information is based on any of his own biases. For example, is he afraid of Sebastian, or does he mistakenly believe that mentally ill people are always violent?
Alternative 3: Compromise to Help Manage Sebastian’s Level of Risk
For this alternative, Dr Suresh may consider a situation where he chooses to arrange for an involuntary hospital admission for Sebastian. In this scenario, Dr Suresh may elect to share confidential information about Sebastian in order to help arrange a period of involuntary hospitalisation. To this end, Sebastian may draw upon a psychiatrist member of his team to arrange for an involuntary hospitalisation. Dr Suresh will need to share enough information with the treating psychiatrist to assist him or her with making a determination about whether Sebastian might meet the criteria for involuntarily hospitalisation.
The mental health Acts across the states require that a medical practitioner (and sometimes other health practitioners) needs to examine the individual to determine whether, in their professional opinion, the patient suffers from a mental illness, presents a risk of harm to himself or herself or others, or is unable to care for himself or herself or will deteriorate significantly without the involuntary treatment.
As with the second alternative, Dr Suresh’s actions as described here would not contradict his ethical obligations if he ensures that the risk is imminent, the victim is identifiable and the risk cannot be averted by some other means that would not necessitate breaking confidentiality. He would also need to ensure that the only information revealed is that which is necessary to assist the psychiatrist with obtaining the information necessary to conduct an assessment of the patient’s suitability for involuntary hospitalisation.
There are two general risks associated with this proposed course of action. First, it may not ultimately serve to protect third parties from Sebastian since he may not be found eligible for involuntary hospitalisation (although this is unlikely given the facts, Sebastian’s history of psychiatric illness and Sebastian’s current symptoms). Second, Sebastian may take offence with Dr Suresh’s decision to share confidential information with others in order to protect possible third parties. The benefits of this action are that Sebastian may in fact be hospitalised or treated on a community-based order that assists him to restore his mental well-being over time, thereby also reducing the level of risk he poses to third parties including Adam. The related benefit is that while Dr Suresh is sharing some information obtained in confidence, the information is being shared to assist Sebastian in his care – not to warn the police in order to somehow protect third parties including Adam. Also, the information Dr Suresh is sharing is shared with a psychiatrist who is also obliged to maintain confidentiality.
Considerations in this section are similar to those discussed for the previous two alternatives. For this alternative, Dr Suresh will have to consider his own views regarding involuntary treatment. Some people have misgivings about compelling treatment, which is typically forced medication. Dr Suresh would have to consider the extent to which any such views are balanced against the need to reduce the likelihood that Sebastian may harm Adam, or some other person.
Step 6: Choose the Most Appropriate Outcome
On balance, the first alternative, to maintain confidentiality and to try to reduce Sebastian’s risk by continued treatment, is unlikely to be suitable given Dr Suresh’s own conclusion that Sebastian poses a high risk of harm to others, particularly Adam. Dr Suresh’s ability to treat Adam satisfactorily given the description of his presentation and mental state is tenuous at best.
While the first alternative course of action discussed may not be sufficient to avert harm, the second course of action may be too extreme under the circumstances. Given Sebastian’s history and mental state, particularly in light of his current behaviour and di, ordered thinking, he would likely meet the criteria for involuntarily hospitalisation. As such, contacting the police or informing the intended victim, Adam, of the pending risk would not be seen to be the only means by which the ‘immediate and specified risk of harm’ to Adam could be ‘averted’. Indeed, Sebastian is a known patient to the mental health service where Dr Suresh works. Dr Suresh would have ready access to psychiatrists or other suitable medical practitioners such as registrars or advanced trainees who can assist with a determination of whether involuntary hospitalisation or at least a community-based order is appropriate. Of course, if involuntary hospitalisation is not possible, or Sebastian’s risk of harm to Adam could not be contained and eventually reduced through involuntary treatment and/or hospitalisation, Alternative 2 may become necessary.
Based on the considerations above, the third course of action would appear to satisfy Dr Suresh’s need to reduce Sebastian’s level of risk to protect Adam, while still preserving must of the confidential information revealed in the therapeutic relationship. Moreover, the purpose for which the confidential information was obtained through the therapeutic relationship – that is, to assist Sebastian with his mental and psychological wellbeing – is quite consistent with the ongoing provision of mental health treatment to Sebastian, albeit involuntary.
Monitoring
Step 7: Monitor and Assess the Outcome Chosen
Monitoring would be necessary and helpful in this situation to ensure that Sebastian’s level of risk is being managed and that, whichever alternative course of action is in place, Adam is not likely to be harmed.
Resolving the Problem
If Sebastian’s level of risk is managed and reduced without him causing harm to Adam, or other third parties, then the immediate problem will be resolved. If not, the information below will need to be considered to modify the plan of action.
Step 8a: Consider the Need for an Ethical Action Plan or Practice Modification
First, there is a need to ensure that Sebastian’s level of risk is being managed and hopefully reducing. Second, should it be found that Sebastian does not satisfy the requirements for involuntary hospitalisation or treatment, Alternative 2 would need to be reconsidered and likely adopted. Third, even with treatment, Sebastian’s level of risk to Adam may not reduce sufficiently prior to discharge, thereby necessitating the consideration of following the second alternative.
Step 8b: Repeat Steps 5-7
Steps 5 to 7 would need to be reconsidered if in the course of monitoring the situation it was found that the plan was not successful or appropriate.
Conclusions
As suggested by the information presented in this chapter, employing a comprehensive decision-making model to assist with considering ethical dilemmas provides a useful mechanism for mental health professionals to decide how to act on a case-by-case basis. Furthermore, as the two exercises revealed, the process of considering and resolving ethical dilemmas regarding confidentiality is fluid and complex. The mental health professional needs to consider the various ethical and legal principles in order to arrive at an appropriate and effective resolution.
While it may not always be clear exactly which alternative course of action will be ‘correct’ under the circumstances, the structured decision-making process ensures adequate consideration of the factors that mental health professionals most consider prior to making a decision on how to proceed in the most appropriate manner. Ongoing monitoring is then required, along with modification of the plan or implementation of alternative courses of action as necessary.
