THE ETHICS of “CONDITIONAL CONFIDENTIALITY”:
THE RIGHTS OF PATIENTS & THE OBLIGATIONS OF THERAPISTS
Mary Alice Fisher, Ph.D., 2006
Yesterday’s “Absolute Confidentiality” Ethic :
I. Patients have the right to give or to withhold consent for confidential information to be disclosed.
II. Therapists are ethically obligated to protect this right by disclosing nothing without patient consent.
Today’s “Conditional Confidentiality” Ethic :
I. The rights of patients :
A. Patients have the right to make informed decisions about receiving treatment, and thus the right to be informed in advance about foreseeable risks, including the risk that confidences shared with a therapist will not remain confidential.
B. At intake, before receiving services, patients must give consent for the general disclosures (required by law or by the setting’s policies), as described on a “Notice of Privacy Practices,” as a condition of receiving services.
C. Subsequently, patients can give or withhold consent for further specific disclosures.
D. Patients do not have the right to withhold consent for disclosure of confidential information if the disclosure is compelled by law.
II. The ethical obligations of therapists toward protecting those rights:
A. Therapists must obtain the patient’s consent before disclosing any information they are not legally compelled to disclose.
B. Therapists must also protect the patient’s right to be informed, in advance, about foreseeable limits of confidentiality.
1. Therefore . . . unless they intend to protect confidentiality in all circumstances, regardless of the consequences . . . therapists must inform prospective patients about the foreseeable circumstances in which, without seeking the patient’s consent at the time, they might reveal confidential information to others; and must obtain their consent to accept these limits on the protection of confidences, as a condition of receiving mental health services.
C. Therapists must therefore, in preparation:
1. Become aware of all laws that can require therapists to disclose confidential information (since otherwise they are not prepared to inform patients accurately about circumstances when these might apply to their practice or their patients . .
2. Decide how they intend to respond to each such law (because they can be honest with patients about how they intend to behave only if they have already decided ; and because they are better prepared to respond ethically to legal requirements (and to protect confidenciality to the extent legally possible) if they have canvassed the available legal options in advance .
3. Establish clear policies about confidentiality in their practice setting (since they must be prepared to inform patients about disclosures required by their managed care contracts, office procedures, billing practices, clinical policies, etc.) .
4. Prepare to explain these and other foreseeable limits of confidentiality (in language understandable to the patient!):
·····at intake – (preferably before eliciting personal information that might later have to be disclosed without patient consent ;
·····whenever patients raise questions – (preferably before exploring the issues that might underly such questions, since even information heard when exploring a patient’s concerns about confidentiality might not remain confidential) ;
·····whenever a change in the patient’s circumstances or state laws alerts the therapist to a possible confidentiality risk (because therapists know that such changes can increase the risk of unexpected disclosures, but patients often do not) .
Therapists thus have only two basic options:
(1) They can have the clinical freedom to structure intakes as they choose and interact with patients thereafter in any manner they deem clinically appropriate, but only if they are willing to abide by the “old” ethic (which protects patients’ rights by always protecting their confidences ) and maintain absolute confidentiality in spite today’s potentially severe legal/ financial/professional consequences to themselves ;
(2) They can have the ethical freedom to limit confidentiality in order to protect themselves from such risks, but only if they are willing to forego the freedom to interact about confidentiality when and how they choose and accept the clinical consequences of “today’s” ethic (which protects the rights of patients by informing them about their risks), and describe its limits honestly.
Therapists who choose the first option at intake must be prepared to maintain confidentiality absolutely, during therapy and thereafter, regardless of the consequences to themselves.
Therapists who choose the second option must be prepared to explain confidentiality limits honestly, at intake and thereafter.
Therapists who practice AS IF they had a third (“best of both worlds”) option (such as ” freedom not to tell patients about foreseeable limits of confidentiality AND freedom to limit it”) are disregarding the rights of their patients, as well as their professional obligations, and thereby placing both patients and themselves at risk.
Mary Alice Fisher, 2006, The Center for Ethical Practice, Charlottesville, Virginia