Perspectives about professional behavior
ethical focus = attention to the practices that are most protective of patients and their rights (including following or exceeding the standards described in one’s Ethics Code).
legal focus = attention to what the relevant laws and regulations might require, permit, or prohibit.
risk-management focus = attention on minimizing the legal risks to oneself (e.g., identifying ways in which patients can be harmed — or perceive themselves to be harmed — in order to protect oneself from allegations of misconduct, whether founded or frivolous). [Definition adapted from the ethics text by Sam Knapp & Leon VandeCreek (2006), Practical Ethics for Psychologists: A Positive Approach. pp 11, 35.]
Terms describing ethical behavior
ethically required = behavior explicitly required by a professional Ethics Code (e.g., therapists are ethically required to inform prospective patients about the limits of confidentiality before providing services).
ethically allowed or ethically permitted = behavior explicitly allowed (but not required) by an Ethics Code (e.g., therapists are ethically free to disclose confidential information in certain specific circumstances).
ethically prohibited = behavior explicitly disallowed by an Ethics Code (e.g., therapists may not audio-tape patients without their consent)
“ethical floor” = the standard of behavior that complies with the letter of the Ethics Code (i.e., the minimum standards required by the profession).
“ethical ceiling” = a personally-chosen standard of behavior that is more patient-protective than required by the minimum standards in one’s Ethics Code (e.g., following personally-imposed supererogatory standards such as never disclosing anything without a patient’s informed consent unless legally required to do so; not disclosing confidential information simply because some law allows it; etc.).
Terms describing differential legal circumstances
legally required = behavior explicitly mandated by state or federal statute, regulation, or case law (e.g., most states have laws legally requiring therapists to report child abuse).
legally allowed or legally permitted = behavior allowed by law or regulation (e.g., HIPAA legally permits [but does not legally require] therapists to disclose patient information for certain treatment, payment, or health care operations without patient authorization).
legally prohibited = behavior explicitly disallowed by some law or regulation (e.g., most state licensing boards legally prohibit sexual relationships with current patients).
Making Distinctions Among Privacy, Confidentiality, & Privilege
Privacy is a broad concept related to protection from others. The right to privacy is the right to be protected from visibility, access, or intrusion bo others – the right not to be public. For example, mental health professionals can enhance patient privacy by office arrangements that allow patients to enter and leave by doors not visible to others; by preventing others from entering the room while a session is in process; by establishing sound barriers that prevent voices from being heard outside the room; etc.
Confidentiality is a sub-category of privacy that involves informational privacy. The right to confidentiality is the right to prevent information about oneself from being made available to others. The client’s right to confidentiality of the information obtained and held by a mental health professional is protected not only by the confidentiality rules in the Ethics Code of each profession, but also by state and federal non-disclosure laws and regulations.
Privilege is a sub-category of confidentiality. It is a legal concept that protects confidentiality only in legal proceedings. State and federal laws can grant “privilege status” to certain relationships (e.g., husband-wife; attorney-client; priest-penitent; doctor-patient), meaning that the information communicated within that relationship is protected from being used as evidence in a court case. State laws vary in the extent to which information from the therapist-patient relationship is “privileged,” and they vary in the number of legal exceptions to privilege that can allow judges to order that the information be made available as evidence in state court cases. [For discussion of Virginia privilege law and its ethical implications see on this website “Privileged Communications Statutes in Virginia Compared to Other States.”]
Adapted from: Fisher, M.A. (2013, in press). The Ethics of Conditional Confidentiality: A Practice Model for Mental Health Professionals. New York, Oxford University Press. ISBN13: 9780199752201
Section on Privacy, Confidentiality, & Privilege was adapted from Koocher, G.P. & Spiegel, P.K. (2009) What Should I Do? – 38 Ethical Dilemmas Involving Confidentiality, a Continuing Education module available online at http://www.continuingedcourses.net/active/courses/course049.php