An Ethical and Legal Consideration of Confidentiality Requirements

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Sexual activity with children has been considered a crime since the days of early Rome and the establishment of some of the early religious canons (Findholt and Robrecht, 2002). This comes from the belief that children under a certain age are able to make fully informed decisions and so must be protected. To aid in the protection of children, Missouri has established mandated reporter requirements. According to Missouri law, any psychologist who has reasonable cause to believe a patient has been physically, mentally or sexually abused must report their suspicion to the Department of Social Services for investigation (Missouri Revised Statute, ch. 210). The psychologist in the example would be required to report the pregnancy of anyone under the age of fourteen, in order to ensure they were not victims of sexual abuse.

To continue the application of Missouri statutes, it is clear that the parent would have to consent to treatment for the patient described for the psychological care. Had the patient chosen to seek care to continue the pregnancy, she could have. The parents would, however, not have access to the patient’s therapy records without their daughter’s permission. Investigators from the Department of Social Services would be able to subpoena the records in the course of their investigation if they believed a crime had been perpetrated against the minor patient.

Like the psychologist, parents have an obligation, legally and ethically, to protect their children and to provide adequate mental and physical health care (World Health Organization, n.d.). In this example, the parents may have felt that obtaining the records was a step in that direction. The psychologist may have felt that the follow up phone call to discuss the continuation or termination of the pregnancy was a step in the protection of the patient. And both sides may be justified in their stances. The law is conflict with both stances, and the psychologist may have been best served by consulting with a mental health law attorney before proceeding (Behnke, 2007).

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Consent, Disclosure, and Threats of Violence

Violence has long been a force in human society. As the field of psychology has developed, a number different views have evolved to explain the basis of violent behavior. Fortunately, a singular view of how to address threats of violence expressed during therapy has gained common acceptance through the principles of the APA code of ethics. Principle A, beneficence and nonmaleficence call on psychologists to protect the patients they work with and others who may be affected (Tein et al., 2012). Principle B, fidelity and responsibility, call on psychologists to establish good working relationships with those they work with and to be aware of their responsibilities to follow rules and regulations.

It is not just an ethical consideration. Protecting members of society from threats of violence has been codified in state law around the country. Missouri law required that when a mental health worker receives written or verbal information that indicated that a patient presents a danger to himself or others, they will conduct an investigation and evaluated it. If the threat is determined to be valid, immediate action, including arrest or commitment to a mental facility, will be taken (Missouri Revised Statues, ch. 632).

When a client threatens to commit a violent act against themselves or others, a psychologist may find themselves conflicted about what to do. The lines between the need to protect a patient’s confidentiality and to protect the public may be blurred. To explore this issue more fully, two examples will be considered.

In the first example, the patient states that he or she has purchased a weapon and related their plan to use it against a specific person. This situation has played out in the real world. In the well-known case of Tarasoff v. Regents of the University of California, a patient told his therapist he had plans to murder a fellow student who had spurned his advances (Bersoff, 2014). The mental health provider did not reveal the threats and the murder plans were carried out. The victim’s family sued the University of California. After several rounds of hearings, it was determined that the provider had a responsibility to protect the person being threatened.

Once a threat of personal, physical violence has been received, Missouri statute would require a psychologist to investigate the threat. A first step would be to try to obtain patient consent to disclose the threat (Bersoff, 2014). A second step would be perform a thorough assessment to determine the risk of actual violence. Consideration must be given as to the veracity of the threat (Ivers and Perry, 2014). In the event that time does not permit adequate assessment, the treating psychologist should err on the side of protection.

The second example of a threat to personal safety is less defined. A patient relates to the psychologist that she was molested by a family member as a child. Now a mother herself, the patient relates that her child is going for a visit with the molester. In this situation, the risk to the child is not necessarily death or serious bodily injury. Therefore, the Missouri statue would not apply. Missouri does, however, have the mandated reporter law that specifically addresses psychologists.

This becomes an argument of mandatory reporting vs permissive reporting (Ivers and Perry, 2014). The APA principle of beneficence and nonmaleficence clearly apply. The psychologist would have a responsibility to determine if the visit would be harmful to his patient and the child. If the psychologist determines that the claim of previous molestation is valid, and likely to be reported, he or she is obligated to take steps to prevent the visit. This could be through a call to the Department of Social Services child abuse hotline. It could be through supporting the parent as she refuses to permit the visit. If the visit is permitted, and the abuse reoccurs, the psychologist continues to be a mandated reported. The abuse must be reported. It could be argued that the molester must be reported, as well as the parent who was aware of the risk and did not protect the child.

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Conclusion

Psychologists must be aware of their legal and ethical responsibilities to their clients and those with third party interests. Psychologists must be aware of statutes regarding the age of consent, confidentiality, and mandated reporting. Difference in jurisdictions