Privacy, Confidentiality, Privilege
By Lorraine M. Dorfman, Ph.D. © 1999
Sometimes the law clashes with what practitioners consider sound psychological practices. There may be conflicts between those duties the law requires of therapists and ethical considerations. Here we will look at privacy, confidentiality, and privilege.
Privacy, confidentiality, and privilege are terms used in psychology and the law. Privacy refers to the constitutional rights of individuals, outlined in the federal and state constitutions, against unnecessary intrusion and the rights of individuals to control disclosure of personal matters. Confidentiality refers to a professional’s promise (based upon professional ethics) to reveal nothing about a patient without his or her consent.
Privileged communication is usually conferred by state statute. Privilege refers to the legal right that exempts patients from having their confidential disclosures revealed by their therapists in legal proceedings. Privilege is determined by state law. Whereas one state may extend privilege in both civil and criminal hearings, another state may extend privilege to civil proceedings only. For instance, privilege is usually denied in cases of murder. There usually is a difference according to professions of clergy, psychologists, psychiatrists, and social workers. Psychologists do not hold privilege. Patients hold privilege.
In reality, the difference between confidentiality and privilege poses many problems. How psychologists view the therapeutic milieu and how the public views the business of therapy is very different.
Patients’ beliefs about confidentiality play an important role in establishing and maintaining a therapeutic relationship, granting informed consent, and bringing possible breach of confidentially lawsuits. Generally speaking, research suggests that patients expect their communications to remain secret unless they are told otherwise or unless the patient gives permission for information to be shared. Thwarting the patient’s expectation can hurt the therapy. Knowing this, some therapists are reluctant to share the limits of confidentiality with their patients. The American Psychological Association is very clear, however, that psychologists must discuss limitations of confidentiality with persons or organizations with whom a scientific or professional relationship is established.
Psychologists are considered mandated reporters. That means when a psychologist becomes aware that a patient’s behavior or even intended behavior may be dangerous to the patient or to others, the psychologist is required to report it to the appropriate authorities. This includes drunk driving, indiscriminate spread of sexually transmitted disease, physical and/or sexual abuse, and suicidal or homicidal behavior.
Suppose a woman who discovers her husband’s infidelity tells her therapist, “I could kill my husband.” The therapist may not believe this to be a serious threat but rather an expression of her hurt and anger. With a court imposed standard requiring warning known potential victims the therapist would have to call the husband. This would not be a therapeutic gesture. In fact, calling the husband likely would undermine the therapy. The intended victim might end up harming the patient. If the therapist warned the husband and the patient were paranoid, the therapist might be placing him/herself in danger.
Practitioners tread a precarious balance between client rights of confidentiality and society’s right to be protected.