Patient Confidentiality: Changing the Rules for Modern Duty to Warn

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Patient Confidentiality
Changing the Rules for Modern Duty to Warn

Mark O'Brien
Professional and Ethical Issues
Instructor
Dr. Alina Perez
Florida Institute of Technology
October 8, 2012

Every first year psychology student is taught that maintaining the confidentiality of the client is a prime concern in the development of a counseling relationship. As a practicing psychologist, members of the American Psychological Association are subject to guidelines for ethical behavior and sanctions for not maintaining patient confidentiality. However, the decision to protect a patient's divulgences or even the fact that a person is a client can become a quagmire of ethical complications that few psychology students address in depth before they step into the counseling world. When does the duty to maintain a patient's confidentiality cease and where does it begin? From the legal guidelines of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to the ethical guidelines of the APA, the practicing psychologist is faced with a multitude of situations in which the maintenance of client confidentiality becomes difficult or even potentially illegal. In this paper the writer will attempt to address some of the situations which can cause ethical dilemmas for the psychologist and some of the potential answers that are available.

Perhaps even more than the APA, HIPAA concerns regarding confidentiality are of primary importance to the practicing psychologist. In 1996, Congress adopted a law aimed at protecting patient privacy that has resulted in annual privacy notices to patients and new paperwork to prove that medical providers are ensuring the privacy of their patients. In theory, it also protects patient confidentiality. According to the United Stated Department of Health and Human Services, which oversees the law, " A covered entity must disclose protected health information in only two situations: (a) to individuals (or their personal representatives) specifically when they request access to, or an accounting of disclosures of, their protected health information; and (b) to HHS when it is undertaking a compliance investigation or review or enforcement action," (HHS.gov, 2012). Of course, this immediately complicates the theory of patient confidentiality as the health care provider, in this case the psychologist, is faced with the duty not only of maintaining his or her ethical commitment to the patient and to society as a whole, but is also forced to attempt to interpret the law regarding when disclosure is permitted. High profile cases where mental illness is suspected to be a part of a patient's illegal actions, such as the 2007 shootings at Virginia Tech, further complicate the question.

From the perspective of the psychologist and the APA, the guidelines are no less confusing or complicated. The organization holds five general principles to be of the utmost importance to psychology practice. However, the principles are not necessarily clear what action the psychologist should take when the principles themselves require contradictory action. Principle five states the psychologist will show respect for people's rights and dignity. Specifically, the APA says, “Psychologists respect the dignity and worth of all people, and the rights of individuals to privacy, confidentiality, and self-determination. Psychologists are aware that special safeguards may be necessary to protect the rights and welfare of persons or communities whose vulnerabilities impair autonomous decision making," (APA.org, 2012). The need to protect a patient's confidentiality has its roots in respect for the client. It is intended to prevent patients from facing a social stigma related to their need for counseling and to promote absolute trust in the relationship between the patient and the provider. It gets messy when combined with the first principle, beneficence and nonmaleficence. “Psychologists strive to benefit...
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