6.B.4
When law and ethics pull in different directions
ASPPB's competency statement 6.B.4: Identify and address conflicts between legal and ethical issues (e.g., court order, mandated reporting, billing practices) in professional practice
Psychologists work under laws and court orders that can seem to clash with ethical duties, especially confidentiality. APA Standard 1.02 sets the response: clarify the conflict, make known one's commitment to the Ethics Code, and take reasonable steps to resolve it consistent with the Code, never using the standard to justify violating human rights. Many apparent conflicts shrink once the psychologist learns exactly what the law requires, and a required disclosure is limited to what is necessary.
Key ideas
- Subpoenas and court orders
- A request or subpoena from a lawyer is not client consent. Without consent, psychologists disclose only as law mandates or permits (Standard 4.05), which often means asserting the client's privilege or awaiting a court's ruling; a valid court order can compel disclosure.
- Mandated reporting
- Where the law requires reporting suspected abuse, psychologists report. Standard 4.05 permits disclosure mandated by law, Standard 4.02 requires telling clients about such limits at the outset, and Standard 4.04 limits a report to information germane to its purpose.
- Duty to protect
- Tarasoff v. Regents of the University of California (1976) held that therapists have a duty to protect intended victims of a patient's serious danger of violence. Later laws vary: some jurisdictions mandate warning or protecting, some only permit disclosure, and some give no guidance.
- Billing and fees
- Standard 6.06 requires accurate reports to payors about the service, fees, provider and diagnosis, and Standard 6.07 bars fees based on the referral itself. An insurer's rules never justify misstating a diagnosis or a service.
- Test data and materials
- Standard 9.04 governs releasing test data to the client or to persons named in a release, and Standard 9.11 requires reasonable efforts to keep test materials secure, consistent with law and contractual obligations.
Worked example
A psychologist's client, an 81-year-old woman with intact decision-making capacity, reveals that her son has been taking money from her bank account without permission. She pleads with the psychologist to tell no one. The psychologist is unsure whether local law requires a report about an adult who has capacity.
- Clarify what the law actually requires: rules on reporting harm to adults differ between jurisdictions, so check the statute or ask a lawyer or the regulator, without identifying the client (Standard 4.06).
- If no report is required, Standard 4.05 limits disclosure without consent to what the law mandates or permits, so the psychologist keeps her confidence and works with her on protecting her money.
- If a report is required, the psychologist makes it, makes known the commitment to confidentiality, and includes only information germane to the report (Standards 1.02 and 4.04).
- Either way, tell the client what is happening and why, and keep her involved in planning, in keeping with respect for self-determination under Principle E.
Learn exactly what the law requires, comply in the least intrusive way, and keep the client informed.
Check yourself
Under APA Standard 1.02, as amended in 2010, what should a psychologist do when an ethical responsibility conflicts with a law?
Sources
- American Psychological Association (2017), Ethical Principles of Psychologists and Code of Conduct, Principle E; Standards 1.02, 4.02, 4.04, 4.05, 4.06, 6.06, 6.07, 9.04 and 9.11
- APA Committee on Legal Issues (2006), Strategies for private practitioners coping with subpoenas or compelled testimony for client/patient records or test data, Professional Psychology: Research and Practice 37(2), 215-222, Responding to a subpoena without consent: contacting the client, asserting privilege, seeking a court's direction
- Bersoff (2014), Protecting victims of violent patients while protecting confidentiality, American Psychologist 69(5), 461-467 (PMID 25046702), Abstract: the Tarasoff (1976) holding on the duty to protect intended victims
- Johnson, Persad and Sisti (2014), The Tarasoff rule: the implications of interstate variation and gaps in professional training, Journal of the American Academy of Psychiatry and the Law 42(4), 469-477 (PMID 25492073), Abstract: states that mandate, states that permit, states that give no guidance