Carolyn Stimel, Ph.D., ABPP (Forensic)
Private practice, Executive Director Florida Psychological Association
For those of us working in the borderlands of mental health practice and the legal system, we are well aware that the old question of Who is the client is too simplistic for our complicated times, And yet, we must deal with the issues raised by it all the time. How do we balance the needs of all those individuals involved in a messy high-conflict family, When we are doing a court-ordered evaluation on an individual and they make a homicidal threat, what do we do about it, When we are doing a custody evaluation and think there might be ongoing physical abuse to a domestic partner, what should we do with that information, What do we do when the needs of multiple children in a case are incompatible When working as a parenting coordinator for a case and someone asks you to keep certain information confidential, what is the best course of action, What about when a collateral source you have contacted for information asks that you not disclose them as the source.
What are the legal requirements that play into our decision-making, What are the ethical requirements that are involved, And are they the same? The answer to that last question is not usually. There are many cases in which legal and ethical demands may not be compatible. In most clinical work with systems, it is recommended to have transparency. This does not tend to be the typical legal model. In collaborative models striving towards transparency is more evident. Participation Agreements should make it clear what the parameters for information exchange are. Having done so, confidentiality issues should be less of an issue but it is difficult to anticipate all the possible scenarios that could arise.
Now, in a perfect world, we have thought through all the possible issues that could arise and we have covered all possible scenarios in our consent procedures and documents prior to beginning a case. We have discussed this thoroughly in our informed consent process with all of the potential participants in the case. In reality, we are often faced with unforeseen circumstances that require complex decision-making.
I would suggest that the more appropriate question to ask ourselves in any case is, What are my professional responsibilities to each person or entity involved in this case. Because in any case, there are multiple parties to whom we have some responsibility. We have laws and administrative rules that address some of the requirements. We may be working under a court order with defined conditions. We have general and specific ethical guidelines that provide some guidance, but not always a definite course of action. The nature of the referral, whether court-ordered, attorney requested, or self-referred, provides some guidance. We usually have some professional responsibility toward the referral source, but we also have responsibilities to those directly being assessed and/or assisted. Also, in many forensic cases, there are associated others (such as collateral sources of information or participating family members) to whom we have some responsibility. Some of these associated entities may be systems such as the court, and other organizations. Some will be directly involved such as an individual being evaluated or family members being assisted with elder or parenting coordination. Some will be less directly involved but still brought into the process, such as extended family or collateral informants. And we cannot ignore our responsibilities to society at large, which is what we are serving when we act in response to suspected child abuse or danger to the community.
As in much of life, there is a balancing act involved in examining our professional responsibilities to all of these involved participants. One of the reasons there are rarely clear-cut answers is that we often have to prioritize the values and needs involved. And in this process, our own values, needs and biases come into play even when we like to pretend they are not in the mix. I have watched and monitored the state’s disciplining of mental health licensees over many years in my roles with the psychological association. In many of the cases, it appears that the transgressions started with the professional wanting to help as opposed to intentionally trying to harm others. However, other issues intrude and lead to complex problems. These issues may involve seeing oneself as a crusader, violating boundaries while thinking it was for a positive goal, and not taking into account the totality of professional responsibilities involved in the situation.
So, acknowledge that ethical dilemmas are rarely as clear as we would like and be thoughtful about how to proceed when they arise. Consultation (one on one please, not on a list serve) with trusted and experienced colleagues, consultation with your attorney, and contacts with malpractice carriers may help in the decision-making process. Be forewarned that you may receive differing opinions that you will need to sort through. Most of these types of decisions are multiple-choice and you have to think in terms of the best answer as more than one answer may be correct!