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Ethical and Legal Issues
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To start this discussion of ethics as it relates to ethics and confidentiality boundaries, I would like to get three very basic but crucial issues out of the way first.
In this section, we will examine three important aspects of ethical vs. legal issues. These three aspects include: ethically improper situations; legally binding situations; and walking the tightrope.
3 Important Aspects of Ethical vs. Legal Issues
♦ Aspect #1 Ethically Improper Situations
The first aspect of ethical vs. legal issues for the mental health therapist to consider are ethically improper situations. "Ethically improper" refers to situations in which, legally, the therapist’s actions were not reprehensible, liable, or in the wrong.
However taken in the context of confidentiality issues may be construed as unethical. These situations include discussing confidential and privileged information about a client with another colleague in a public place such as restaurants or other crowded areas. Even if the client’s name is not mentioned, the specifics of a case may be enough for an acquaintance within hearing distance to identify the client.
The reason why I bring this to your attention is one of my colleagues, who I will call "Sue", joined me in line one day at a restaurant. She began to tell me about a case she had that morning, specifically, a woman who had AIDS and didn’t want anyone to know. Sue also said that it will be hard to keep that quiet because her client had three children and a stay-at-home husband. In this small disclosure, Sue has put her client’s confidentiality in great risk in several ways.
Two Risks of Confidentiality
First, I may have seen this woman going into her office and may know her, since this is a small town.
Second, with the details of the case, such as the rare stay-at-home husband and three children, a listener may easily identify this woman, who wanted to keep her medical state a secret.
According to Codes of Ethics, "mental health professionals should protect the confidentiality of all information obtained in the course of professional services, except for compelling professional reasons." Although consulting a colleague about a correct course of action is not improper, doing so in a public place is. Some Ethics Codes even list certain public places which are not ethically sound for the disclosure of information. Think of your colleagues. What places would be ethically proper for the confidential disclosure of information regarding a difficult client of yours?
♦ Aspect #2 Legally Binding Situations
The second important aspect of ethical vs. legal is legally binding situations. In certain circumstances, and this is especially true in regards to minors, healthcare professionals may be legally obligated to break the boundaries of confidentiality in order to be in keeping with the law. If not done so, you or your colleagues may be subject to legal action and retribution.
As you are aware, in most cases, the breaking of confidentiality occurs in cases of client sexual or physical abuse or client’s threats to harm themselves or another person. Very often, in cases with minors, the parents may need to become involved for the benefit of the client depending on the age. The younger the client, the less he or she can be allowed to be self-determinate in the disclosure of his or her information.
Jill, age 15, had been sent to Carol, her school counselor, for outbursts of rage and aggression towards teachers and other students. At first, Jill was unwilling to disclose any information to Carol, but eventually, Jill began to talk about her home life. Apparently, her mother, Francine, is rarely at home to care for Jill. When Francine is not home, she is out at the bars where she constantly meets new men and brings them home. When her mother’s current boyfriends raped Jill, she began to stay out of the house whenever her mom brought home a new man.
Jill stated, "That whore let it happen! She doesn’t give a damn about anyone but herself, and she can rot in hell!" Because Jill had been raped, Carol reported the incident to child protective services. The man was arrested, convicted, and sentenced. Also, because her mother was convicted of neglect, Jill was moved into her aunt’s house.
Jill stated, "I’m glad I’m with my aunt, I guess. She’s not my mom, but she’s better, you know? I wish my mom could work her shit out first, which she’s trying to do, but I’m glad she can do it without me now." The point of this breaking-the-boundary-of-confidentiality case study is sometimes, it benefits the client’s wellbeing to break confidentiality and report circumstances to legal authorities. Think of your Jill. Would breaking confidentiality and alerting authorities benefit or hurt the client-counselor relationship?
♦ Aspect #3 Walking the Tightrope
In addition to ethically improper and legally binding, the third aspect of ethical vs. legal is walking the tightrope. In some cases, the correct course of action may not be clear, and the consequences may not always be positive. "Walking the Tightrope" refers to that time period during which you are uncertain about the right move to make and you haven’t completely committed yourself to anything. At some point, however, a choice must be made and the fall off of the tightrope is inevitable.
Carly, age 14, told Julie, her social worker, that her father, Paul, had been molesting her. Carly, embarrassed by the circumstances and led to believe that the abuse was her fault, expressly asked Julie not to tell anyone about the abuse. However, Julie explained she was legally bound to report incidences of abuse.
However, the judge ruled that Carly would have to give her testimony in court in front of her father and the rest of the family, who believed she was lying. Faced with this pressure, Carly recanted and the charges were dropped. In addition to this, the relationship between Carly and Julie deteriorated. Carly was angry that Julie had betrayed her trust and became belligerent and angry in their sessions together. Eventually, Carly was referred to another case worker.
In this section, we discussed three important aspects of ethical boundaries related to ethics versus the law. These three important aspects include: ethically improper; legally binding; and walking the tightrope.
Peer-Reviewed Journal Article References:
Barnett, J. E., & Kolmes, K. (2016). The practice of tele-mental health: Ethical, legal, and clinical issues for practitioners. Practice Innovations, 1(1), 53–66.
Brown, M. E., Vogel, R. M., & Akben, M. (2021). Ethical conflict: Conceptualization, measurement, and an examination of consequences. Journal of Applied Psychology.
Hudgins, C., Rose, S., Fifield, P. Y., & Arnault, S. (2013). Navigating the legal and ethical foundations of informed consent and confidentiality in integrated primary care. Families, Systems, & Health, 31(1), 9–19.
Mandalaki, E., & Fotaki, M. (2020). The bodies of the commons: Towards a relational embodied ethics of the commons. Journal of Business Ethics.
Pope, K. S. (2015). Record-keeping controversies: Ethical, legal, and clinical challenges. Canadian Psychology/Psychologie canadienne, 56(3), 348–356.
Rigg, T. (2018). The ethical considerations of storing client information online. Professional Psychology: Research and Practice, 49(5-6), 332–335.
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