Disclosing confidential informationBy Stephen Behnke, JD, PhD, MDivApril 2014, Vol 45, No. 4Print version: page 44
Among the most frequent calls to the APA Ethics Office are those asking how the Ethics Code applies tomandatory disclosures of information, such as child abuse reporting or when a client threatens to harm a thirdparty in a jurisdiction with a duty to protect or warn. A helpful tool for responding in such situations can bethinking of legal, clinical, ethical and risk management as four bins (see February "Ethically Speaking" column.)The psychologist will identify in what bin a particular question belongs and then explore how the bins worktogether.
Understanding the Ethics Code
The starting point for any psychologist considering whether to disclose confidential information is APA EthicalStandard 4.05, Disclosures. It states:(a) Psychologists may disclose confidential information with the appropriate consent of the organizational client,the individual client/patient or another legally authorized person on behalf of the client/patient unless prohibitedby law.
(b) Psychologists disclose confidential information without the consent of the individual only as mandated bylaw, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtainappropriate professional consultations; (3) protect the client/patient, psychologist, or others from harm; or (4)obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that isnecessary to achieve the purpose. (See also Standard 6.04e, Fees and Financial Arrangements.)Standard 4.05 opens three doors for disclosing confidential information: client consent, legal mandate and legalpermission. At least one of these doors must be open before a psychologist is permitted to disclose confidentialinformation. Two statutes illustrate the interaction among the legal, clinical, ethical and risk management bins.In Massachusetts, psychologists have a duty to take reasonable precautions to warn or protect a third partythreatened by his or her client. According to Massachusetts General Laws, chapter 123, section 36B, this dutyarises when:(a) the patient has communicated to the licensed mental health professional an explicit threat to kill or inflictserious bodily injury upon a reasonably identified victim or victims and the patient has the apparent intent andability to carry out the threat…; or (b) the patient has a history of physical violence which is known to the licensedmental health professional and the licensed mental health professional has a reasonable basis to believe thatthere is a clear and present danger that the patient will attempt to kill or inflict serious bodily injury against areasonably identified victim or victims.
When either of the conditions in clause (a) or (b) are met, the psychologist's duty to "warn or protect" theintended victim of the client's harm may entail a disclosure of information. In both clauses, whether thepsychologist has a legal duty will rest upon a clinical judgment regarding the client's "intent and ability" and/orwhether there is "reasonable basis to believe that there is a clear and present danger." For this reason, when apsychologist contacts APA's Ethics Office and asks whether there is a duty to warn or protect, the officeresponse may be that the psychologist should speak with both a mental health law attorney and a psychologistwith expertise in risk assessment to determine whether the psychologist has a legal duty to disclose.There is an inextricable link between the legal and clinical bins insofar the legal duty is triggered by a clinicalassessment. The statute deepens this link in the next clause by exempting a psychologist from a legal duty towarn or protect in certain circumstances:Nothing in this paragraph shall be construed to require a mental health professional to take any action which, inthe exercise of reasonable professional judgment, would endanger such mental health professional or increasethe danger to potential victim or victims.
The phrase "reasonable professional judgment" falls squarely in the clinical bin. Once again, the psychologist'sclinical assessment has legal implications.
The statute's following clause falls into the risk management bin:Whenever a licensed mental health professional takes reasonable precautions … no cause of action by thepatient shall lie against the licensed mental health professional for disclosure of otherwise confidentialcommunications.
Note that the legal, ethical, clinical and risk management bins bring us full circle in reading the statute. Ethicalstandard 4.05 allows for a psychologist to disclose confidential information when he or she is legally mandatedto warn or protect a third party. The legal duty is based upon a clinical assessment; a clinical assessment mayalso exempt a psychologist from the legal duty. Finally, in the risk management bin, when the psychologist takesappropriate action in accordance with the statute to fulfill the legal duty, the psychologist will not be exposed toliability for a disclosure of confidential information.
Child abuse reporting
The four-bin analysis may also be applied to mandatory child abuse reporting. The Ethics Office receives manycalls from psychologists asking whether information they have received, often having to do with abuse that tookplace in the distant past, requires a mandatory report. Although psychologists may provide good reasons forwhy suspected child abuse in the distant past should not require a mandatory report — especially for adultsurvivors of incest who come for treatment — the question nonetheless belongs in the legal bin. For this reason,the Ethics Office will refer this psychologist to an attorney specializing in mental health law or to a supervisor atchild protective services in the relevant jurisdiction.
There are multiple variations on this theme: when the psychologist learns of the abuse in a non-professionalsetting, such as a Sunday afternoon in the park; when the abuse took place in a separate jurisdiction; or whenthe alleged abuser no longer has access to children. Any guidance offered by the Ethics Office must include anexplanation that these questions are legal questions that lie outside the purview of APA's Ethics Office.If the psychologist determines that the information triggers a mandatory child abuse report, Ethical Standard4.05 allows the disclosure because the legal mandate door is open. Like the Massachusetts duty to warn/protectstatute, most child abuse reporting laws have a clause that helps the psychologist in the risk management binagainst a claim for breach of confidentiality. The California penal code, for example, has the following language:No mandated reporter shall be civilly or criminally liable for any report required or authorized by this article, andthis immunity shall apply even if the mandated reporter acquired the knowledge or reasonable suspicion of childabuse or neglect outside of his or her professional capacity or outside the scope of his or her employment.This broad clause offers a high degree of protection to a psychologist who discloses confidential informationpursuant to a child abuse reporting statute. Following up on the legal, ethical and risk management bins, thepsychologist will consider in the clinical bin the most appropriate way to make the disclosure while meeting therequirements of the child abuse reporting law.
Stephen Behnke, JD, PhD, MDiv, is director of APA's Ethics Office.