Therapists should be dedicated to observing the highest standards of professionality, both in dealing with their clients and in the handling of their professional relationships with colleagues and the public in general.
In discussing professional ethics and the law in the context of a therapist’s “ideal” practice, it is essential to analyze the ethical standards for marriage, family, and child counselors as promulgated by the California Association of Marriage and Family Therapists, and to analyze current studies addressing various legal and ethical conflicts presented in a therapist’s practice.
“Law” is a word that is used in so many different ways and connotes so many different things, it is almost as difficult to define as the concept of “love.” However, notwithstanding any philosophical conundrum, law can be defined as the rules that are statutorily enacted or judicially made and that govern the many aspects of our personal and professional lives.
“Ethics” is also a term that is often used in a variety of ways and through use has become a shorthand reference indicating the existence or absence of moral conduct in personal and professional dealings. The positive use of “ethics” in a professional context usually calls to mind the image of a person acting in an honorable and above-board manner with her clients and colleagues. Conversely, “unethical conduct” usually brings forth the image of a professional who uses her position of trust and confidence to put her own interests above that of a client or colleague, often resulting in a detriment to the other person.
Responsibility to the Profession
Licensing, joining professional organizations, and practicing with others are topics that fall into the area of responsibility to the profession (CAMFT standard #5). These topics touch upon the ethical responsibility a therapist is expected to exhibit in dealings with her colleagues and the public at large. Standard 5 states that “marriage and family therapists respect the rights and responsibilities of professional colleagues; carry out research in an ethical manner; and participate in activities that advance the goals of the profession.”
As to licensing, marriage and family therapists are to be involved in developing laws and regulations pertaining to their profession that serve the public interest (Standard 5.7). This includes ensuring that all therapists are duly educated and licensed pursuant to the laws under which they practice and that all therapists remain accountable to the standards of their profession when engaging in authorized practice (Standard 5.1).
Joining professional organizations is another means for a therapist to promote ethical continuity and responsibility in her field. The sharing of ideas and the discussion of moral issues among a group of therapists is highly conducive to developing professional cooperation and integrity. A higher level of ethical conduct should be the natural result of the awareness through interaction of a group of therapists who all face similar conflicts in their practices.
Practicing with others is a topic that involves responsibility to the profession in that each therapist must respect the other’s individual rights and responsibilities to their own clients, while advancing the common goals of their working relationship or partnership with other therapists. Additionally, there is also a responsibility not to “exploit the trust and dependency of students and supervisors” (Standard 4).
Accordingly, a therapist in a supervisory role must ascertain the ability and level of experience of supervisees, and not allow supervisees to perform professional counseling beyond their level of competence and training, or to hold themselves out as something beyond their actual level (Standard 4.2).
While advertising professional services has become a common and accepted practice among doctors, lawyers, and psychotherapists, certain ethical guidelines must be met. The purpose of advertising by the therapist should be to “enable laypersons to choose marriage and family services on an informed basis,” as well as to enable the therapist to build a practice outside of referral business (Standard 7).
Integral to the CAMFT standard on advertising is the concept that therapists should convey accurate information about their qualifications, credentials, and the nature of their practice. There is also a subsection that specifies that it is a therapist’s duty to correct any misinformation regarding her practice or qualifications (Section 7.5) This is highlighted by the fact that many laypersons are of the belief that all therapists hold a PhD in psychology. While many competent psychotherapists do hold PhDs, it is not ethical to let the impression exist that such a degree is held if it is not true.
The therapist/client relationship, including confidentiality and privilege
Perhaps the greatest professional dilemma a therapist faces is whether to maintain client confidentiality in light of a countervailing legal or ethical obligation to notify authorities or parents as to a dangerous or otherwise harmful situation presented by the client.
Confidentiality presents a unique problem in the psychotherapist’s practice for a variety of reasons. The “patient” may be more than one person, such as in the situation where two or more family members are receiving counseling from the same therapist. Such a situation presents the obvious problem that a therapist must avoid; letting one family patient know the confidences of another. This situation can be exacerbated if there are deep hostilities present and the therapist is afraid of emotional or even physical action taking place against the other patient.
Additionally, a situation can develop where an outside third party may be interested in obtaining information related to treatment of a patient.
However, perhaps the most difficult legal and ethical situation is that which exists when the therapist feels that her client poses an identifiable risk to an individual or to society in general. This dilemma was unfortunately brought out of the hypothetical setting by the recent case of Tarasoff vs Regents of the University of California, 529 P.2d 553 (1974). This case involved a psychotherapist who was treating a patient who had told him that he was going to kill “an unnamed girl but readily identifiable as Tatiana Tarasoff, when she returned home from spending the summer in Brazil” (ibid. at 556).
Upon information and belief of the patient’s dangerous propensities, the psychotherapist notified campus police who briefly detained him. However, as the patient appeared rational, he was subsequently released by the officers. Nothing further was done until after the patient did in fact kill Ms. Tarasoff. Although the therapist was aware of an ongoing risk to Ms. Tarasoff he did not either warn her or contact the authorities as to the possible danger.
When the psychotherapist’s prior knowledge and treatment of the patient came to light, Ms. Tarasoff’s parents brought suit against the therapist, claiming he had a duty to warn the victim of the danger presented by the patient’s threats.
The Tarasoff court held that a psychotherapist treating a mentally ill patient holds a duty to use reasonable care to give threatened persons such warnings as are essential to avert foreseeable danger arising from his patient’s condition or treatment.
The court addressed the confidentiality dilemma of a psychotherapist by holding that “the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield in instances in which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins” (Tarasoff at 561).
The CAMFT addresses the issue of confidentiality in Section 2 of its Ethical Standards for Marriage and Family Therapists. It is stressed that “(t)he overriding principle is that marriage and family therapists respect the confidences of their patients,” and “do not disclose any patient confidences, including names, or identities of their patients, to anyone,” except in instances where such information is mandated or permitted by law or in the unlikely situation where the patient has signed a waiver, or the therapist herself is a defendant in a legal action arising from the therapy (Standards, Section 21).
In California, there exists what is commonly known as the psychotherapist-patient priviledge. Moreover, a statement of the rule regarding the privilege is that a patient, whether or not a party in a lawsuit, has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between the patient and her psychotherapist. The privilege is a relatively new one and is recognized by only a minority of jurisdictions outside of California.
The holder of the privilege is the patient, his guardian, conservator, or personal representative if the patient is dead. While the psychotherapist is not the holder of the privilege, she may claim the privilege on behalf of the patient. Basically, the privilege protects any information obtained by the therapist or that is communicated between the patient and the therapist in the course of their relationship.
Additionally, the presence of third parties during such communication does not destroy the privilege provided that those third persons are participating in the patient’s diagnosis or treatment under the direction of the psychotherapist. This is especially relevant in a group therapy or family counseling sessions.
On the other hand, communications made in the course of a court-ordered examination are not within the psychotherapist-patient privilege. This is consistent with both the CAMFT ethical standards and common sense, as the whole purpose of a court-ordered exam is for the psychologist to report on the mental condition of the patient, and the dissemination of obtained information to the court is the main focus of such an examination.
The overall rationale of the psychotherapist-patient privilege is to encourage full disclosure by the client, and to create an atmosphere of trust without which adequate diagnosis and treatment of mental and emotional illnesses cannot be made.
The psychotherapist-patient privilege can be analogized to the physician-patient privilege, however there are distinctions between the two, the most notable of which is that the former privilege is much broader in scope. For example, the psychotherapist-patient privilege applies to all proceedings, whereas the physician-patient privilege does not apply in criminal proceedings.
Alternatively, the privilege does not apply if the patient puts his mental or emotional condition at issue, such as by an insanity plea, for example. However, the psychotherapist-patient privilege is applicable in civil actions for damages arising out of a patient’s criminal conduct, whereas the physician-patient privilege is not applicable in such a case.
Notwithstanding the ethical dilemma in reporting a patient who poses an identifiable risk to society, there are at least four other areas where a therapist continually faces confidentiality problems. These common areas are group therapy sessions, treatment of minors, and treatment of suicidal patients, and the treatment of those who may be engaging in acts of child abuse.
The treatment of minors
Mental health treatment of minors presents sensitive ethical issues to the psychotherapist. California law states that a minor who is at least 12 years of age and who has the maturity to participate in counseling sessions and who would otherwise be seriously harmed or harmful to others without the benefit of such treatment, is able to give consent for his or her own treatment (California Civil Code Section 25.9). Interestingly, parents or legal guardians are not liable for payment of counseling services under this law, unless the parent or guardian is a co-participant in the treatment.
While the practical question of who is to pay for the treatment raises a problem, the real ethical question is presented when a minor reveals information that is of a highly self-harmful or illegal nature. Clearly, if a minor presents a threat to others, the psychotherapist is obligated to warn others as highlighted by the Tarasoff case. However, when therapy yields information that will harm only the minor who is being treated, there is an ethical question of whether the parent or legal guardian has a right to know of the danger to or illegal activities being engaged in by a child.
In partial answer to this ethical dilemma, the California Evidence Code Section 1014.5 provides that the psychotherapist-patient privilege applies to counseling rendered by a professional to a minor. Although this privilege protects the minor from having his or her confidences revealed without permission during legal proceedings, it does not necessarily protect a minor against all unauthorized disclosures that could be made by a therapist.
Additionally, where minors do not fall within the exceptions of legal emancipation or “maturity” sufficient to satisfy Civil Code Section 25.9, they are not considered to possess the requisite legal capacity to consent to their own treatment.
Treatment of a minor who is legally unable to consent to treatment places the psychotherapist in an untenable position when the client does not wish his parents to be notified. Further legal and ethical issues of confiden|tiality arise “1) when parents demand that communications between the therapist and minor be revealed to them, 2) because of the legal requirement that the therapist report to the authorities suspected cases of abuse and neglect, and 3) because of a duty to disclose confidential information to protect a third person from harm threatened by the client” (Myers, 1982).
The therapist’s ethical responsibility in group therapy sessions is to promote a high level of awareness as to the importance of keeping revelations made by group members confidential. It has been suggested by at least one study that the therapist must make a strong initial presentation on confidentiality to the group if it is to be expected that participants will fully appreciate the significance of revealing communications made by group participants. Kathleen Davis of the University of Tennessee surveyed eight leaders and 98 members of 12 counseling groups to find “groups whose leaders did not make an initial statement about confidentiality had the highest percentage of members who believed they could talk about the group and who actually talked to others outside the group meeting” (Davis, 1980).
California law provides that a psychotherapist is under a clear legal obligation to report whatever evidence of child abuse has come to her attention. Regardless of whether she has actual knowledge or merely suspects a child is being abused, the therapist must inform the authorities by telephone and by a written report of her knowledge and information within 36 hours (California Civil Code Sections 34.5 and 34.10).
Although psychotherapists have no legal ability to exercise their own judgment with respect to reporting any abuse situations they become aware of, in practice this reporting requirement may in fact be overlooked by certain therapists. A study in 1981 conducted interviews with 39 psychologists and psychology students and examined their attitudes toward reporting child abuse incidents to the authorities. The subjects were nearly equally divided in their attitudes toward reporting child abuse. Not surprisingly, the majority of subject therapists considered the child’s life most important, but ranked confidentiality second and the law third in their decisions to report child abuse instances in a variety of situations and circumstances. The study found that “those who considered the law the most important issue (31%) chose always to report the abuse. Those who considered the law the least important issue (41%) saw the spirit of the law as more important than the letter and based their decisions on their perception of consequences to the child” (Muehleman, 1981).
Notwithstanding the civil penalties that would result in a failure to report an abusing parent’s activity, there is the ethical conflict in the therapist’s wish to protect the child and the client. However, public policy dictates that the danger to the child at risk outweighs the responsibility to keep the client’s revelations in confidence. The ethical difficulty lies in avoiding the temptation to try and justify not reporting her client’s activities where she feels the abusive situation is controllable through therapy and greater harm may result to the child if a report is made.
The study of ethics and law is one of paradoxes. On one hand, there are so many gray areas in the dealings between a therapist and a client that one would think they could never effectively be regulated. On the other hand, it seems unfathomable that the profession would be where it is today without laws governing conduct.
Why is the therapist subject to these extraordinary ethical and legal considerations in the first place? The answer lies in the nature of the relationship between the therapist and the client. Whether it is in advertising, self-representation, confidentiality, or any of the other areas of ethical and legal conduct, the therapist must strive to maintain an environment in which the client feels absolutely safe. Any failure to maintain this environment represents a betrayal of our clients.
But where there are paradoxes there are conflicts. One such conflict arises when the therapist must adhere to the tenants of the law in spite of the the client’s expectations that issues raised in therapy would never be disclosed.
Although the therapist faces numerous complex ethical issues, she must use her training and experience to conduct herself properly with regards the law and her client’s confidences.
One of the most difficult issues the therapist must face is that of how to protect both the client and society when there is a conflict between the two. While writing this paper, I was reminded of the section on ethical considerations in the paper I wrote on child abuse and neglect. It occurred to me that all therapists should have a standard form that outlines their legal responsibilities. The client would sign and return a copy of this form to the therapist before starting therapy. If the client understood the boundaries of confidentiality before treatment began, there would be a better sense of integrity in the therapeutic relationship.
It is true that a form such as this may cause some clients to leave therapy, although it may turn out that these clients were not ready for treatment in the first place. With or without the form, you must always work through feelings of betrayal when dealing with clients who have threatened to bring harm to themselves or to others, if it becomes necessary to report them. In my experience, however, if there is a strong therapeutic relationship, there will be no damage to the therapy. I believe that by presenting such a form at the beginning, the therapist could establish that confidentiality exists, but is not absolute in all situations.
Mental health professionals should be models of ethical standards. Clients come to us feeling vulnerable, and they need to feel that the therapeutic relationship will be one of the safest experiences of their life. Ethical standards play a part in promoting this feeling of safety, and they are based on sound therapeutic principles. For example, when I first started working for Dr. Fleming, I thought it would be helpful to go on a shopping trip with a client who had very poor self-esteem in order to show her a more effective way of presenting herself. Fortunately, I brought this up in supervision beforehand, and learned a great deal about a client’s transference issues and client’s fantasies about the therapist. This taught me a great lesson about the importance and validity of the ethical standards that have been set out for us to follow.
As clearly as these ethical standards are presented, they are ultimately only guidelines for the therapist who must discriminate between the client’s warnings of extremely anti-social behavior and his expressions of deeper psychological feelings that have nothing to do with serious acts of violence against himself or others. Is a client’s stated intent to kill his boss a real threat or just a way of blowing off steam? Are a client’s repeated but minor self-damaging acts and threats of suicide precursors of suicide or merely attention-getting devices? These areas test the skills of the clinician in her ability to assess, diagnose, and treat the patient.
While treading this narrow path, the therapist must also be aware of the feelings that can be stirred up when it becomes necessary to report a client. It is my opinion that while some therapists may fear the client will be angry at them or leave therapy, they give only the clinical reasons why it is not appropriate to report the client, failing to acknowledge their counter-transference. I think it takes a great deal of self-awareness and personal development to not only handle the ethics of this profession but to understand why some therapists resist reporting clients. Ideally, therapists would attend seminars in which they could discuss their diagnoses, their counter-transference issues, and the reporting laws in cases such as these.
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Board of Behavioral Science Examiners. Laws for MFCC Preparation. California Department of Consumer Affairs. 1976.
Board of Behavioral Science Examiners. Rules and Regulations. Sacramento, California. 1978.
Davis, K. “Is Confidentiality in Group Counseling Realistic?” In Personnel Guidance Journal. 1980.
Hafling, C.K. Law and Ethics in the Practice of Psychiatry. New York. Brunner/Mazel. 1981.
Muehleman, T. and Kimmons, C. “Psychologists’ Views on Child Abuse Reporting, Confidentiality, Life, and the Law: An Exploratory Study.” In Professional Psychology. 1981.
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