marlier.proEthical and legal issues in psychotherapy:
informed consent, dual relationships,
confidentiality, duty to warn
November 9, 2003
Here are a few examples of the ethical and legal problems which may arise in the course of a therapy.
It seems that the terms "informed consent" have two meanings. The first one relates to the information of the client about all the terms and modalities of therapy. First the therapist must ensure that the patient agrees to follow the therapy. He informs him/her of the modalities, goals and limits of his/her work. In case minors seek his/her help, the therapist will request their informed consent as well as their parents' or tutor's consent. The therapist will inform the patient of the planned duration of the therapy, the frequency and the price of the session, the possible side effects and the chances of success of the treatment. This is for the first meaning of the terms "inform consent". A second meaning I found while researching in documents on ethics is that the information in his/her file belongs to the patient. It cannot be disclosed without the patient's informed consent, which should be given freely and without coercion. The patient must be informed of the extent, destination and use of the disclosed information and of the possible consequences of this disclosure. Thus, the confidentiality of the data regarding a patient is not absolute : it can be share with colleagues, in an educational context, for instance.
The Hippocratic oath states, “Whatsoever things I see or hear concerning the life of men, in my attendance on the sick ... I will keep silence thereon, counting such things to be as sacred secrets” (Edelstein). The right to confidentiality is an essential requirement in the course of a psychotherapy, since this is a process in which a considerable amount of personal data is released; it means that the therapist will respect the fundamental right that no one is compelled to disclose anything about oneself. In France at least, it implies that the therapist know the regulatory and legal provisions of the law on data processing, and liberties (Jan 6, 1978) and takes the necessary precautions to protect these data. When the data are disclosed for educational purposes, it is with the informed consent of the patient. They can also be disclosed anonymously, without any possibility to trace them back to the patient. When the law requires that the data be disclosed without the patient's explicit consent, they must be limited to the essential elements required for the sake of justice or society.
This is a debate about the possibility that the therapist disclose some information about his/her patient. Jurisprudence condemned the failure to breach confidentiality when the patient's behavior represents a danger for himself or other people. There is also a distinction between the duty to warn and the duty to protect. The duty to warn implies a breach of confidentiality, whereas the duty to protect does not, since it may be enough to prevent the patient from acting against a potential victim. The concept of protecting potential victims of patients appears to have become a standard of practice in many areas, and the French law about failure to assist a person in danger makes an obligation of it.
Article 12 of the Code of ethics of the French Federation of Psychology says that the therapist does not engage in an evaluation or a treatment which would imply persons with whom he/she has a personal relationship.
(Adler, though said that therapeutic work with friends and even relatives is appropriate because of its educational character.) In addition, the consensus is that no form of personal intimacy should take place in a therapist-patient relationship, including, but not only, sexual relationships, because of the vulnerability of the patient and his/her dependency from the therapist. The difficulty is to know where the border is between and empathic and warm relationship and an abusive relationship. For instance, should the therapist accept a book or a service from a patient. This may well be offered spontaneously and without ulterior motive by the patient, or, this may be an attempt to stir up more attention or gratitude from the therapist. Both the therapist and the patient may occasionally try to use his/her interlocutor. Although it is of course implicit that the patient uses the therapist with this later consent for his recovery. The difference between use and abuse may sometimes be subtle.
The relationship between therapist an patients are subject to legal and regulatory text, and jurisprudence can help, as can the support of colleagues. But in this highly subjective domain, balance and common sense matter, too.
References
Edelstein L. The Hippocratic oath: test, translation and interpretation. Bull Hist Med Suppl 1. Baltimore (MD): John Hopkins Press; 1943. Chapter 16. p 402–6.
informed consent, dual relationships,
confidentiality, duty to warn
November 9, 2003
Here are a few examples of the ethical and legal problems which may arise in the course of a therapy.
It seems that the terms "informed consent" have two meanings. The first one relates to the information of the client about all the terms and modalities of therapy. First the therapist must ensure that the patient agrees to follow the therapy. He informs him/her of the modalities, goals and limits of his/her work. In case minors seek his/her help, the therapist will request their informed consent as well as their parents' or tutor's consent. The therapist will inform the patient of the planned duration of the therapy, the frequency and the price of the session, the possible side effects and the chances of success of the treatment. This is for the first meaning of the terms "inform consent". A second meaning I found while researching in documents on ethics is that the information in his/her file belongs to the patient. It cannot be disclosed without the patient's informed consent, which should be given freely and without coercion. The patient must be informed of the extent, destination and use of the disclosed information and of the possible consequences of this disclosure. Thus, the confidentiality of the data regarding a patient is not absolute : it can be share with colleagues, in an educational context, for instance.
The Hippocratic oath states, “Whatsoever things I see or hear concerning the life of men, in my attendance on the sick ... I will keep silence thereon, counting such things to be as sacred secrets” (Edelstein). The right to confidentiality is an essential requirement in the course of a psychotherapy, since this is a process in which a considerable amount of personal data is released; it means that the therapist will respect the fundamental right that no one is compelled to disclose anything about oneself. In France at least, it implies that the therapist know the regulatory and legal provisions of the law on data processing, and liberties (Jan 6, 1978) and takes the necessary precautions to protect these data. When the data are disclosed for educational purposes, it is with the informed consent of the patient. They can also be disclosed anonymously, without any possibility to trace them back to the patient. When the law requires that the data be disclosed without the patient's explicit consent, they must be limited to the essential elements required for the sake of justice or society.
This is a debate about the possibility that the therapist disclose some information about his/her patient. Jurisprudence condemned the failure to breach confidentiality when the patient's behavior represents a danger for himself or other people. There is also a distinction between the duty to warn and the duty to protect. The duty to warn implies a breach of confidentiality, whereas the duty to protect does not, since it may be enough to prevent the patient from acting against a potential victim. The concept of protecting potential victims of patients appears to have become a standard of practice in many areas, and the French law about failure to assist a person in danger makes an obligation of it.
Article 12 of the Code of ethics of the French Federation of Psychology says that the therapist does not engage in an evaluation or a treatment which would imply persons with whom he/she has a personal relationship.
(Adler, though said that therapeutic work with friends and even relatives is appropriate because of its educational character.) In addition, the consensus is that no form of personal intimacy should take place in a therapist-patient relationship, including, but not only, sexual relationships, because of the vulnerability of the patient and his/her dependency from the therapist. The difficulty is to know where the border is between and empathic and warm relationship and an abusive relationship. For instance, should the therapist accept a book or a service from a patient. This may well be offered spontaneously and without ulterior motive by the patient, or, this may be an attempt to stir up more attention or gratitude from the therapist. Both the therapist and the patient may occasionally try to use his/her interlocutor. Although it is of course implicit that the patient uses the therapist with this later consent for his recovery. The difference between use and abuse may sometimes be subtle.
The relationship between therapist an patients are subject to legal and regulatory text, and jurisprudence can help, as can the support of colleagues. But in this highly subjective domain, balance and common sense matter, too.
References
Edelstein L. The Hippocratic oath: test, translation and interpretation. Bull Hist Med Suppl 1. Baltimore (MD): John Hopkins Press; 1943. Chapter 16. p 402–6.
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