Psychologist Abraham Maslow once wrote that, 'We may define therapy as a search for value." In providing counseling for our patients not only are we providing a system of healing and value for them but also generating a reflection of our own values, ethical as well as legal, as family therapists. In the case scenario provided a large binuclear family, comprising a divorced couple and both their new step-families, attended six sessions of therapy focusing on multiple custody disputes. One year later, one parent reopened the custody settlement and sought the therapist's records. The therapist dutifully obtained written consent to share the records from both sets of parents, and then submitted the records as requested. This situation, commonplace as it sounds, has significant and challenging moral and legal implications that force the therapist to come up with a plan of action. By understanding the issues involved, an aspiring therapist can grow and learn a great deal about the everyday issues which influence clinical practice.
Since issues of interpersonal conflict, power, control, values and ethics are often more pronounced in relationship therapy than in individual therapy, there has been significant debate within the profession about the different values that are implicit in the various theoretical models of therapy and the role of the therapist's own values in the therapeutic process and how confidentiality is defined in a group therapy setting. Ethical codes and standards of practice contain often conflicting guidelines and little that helps to easily resolve such a case as the one presented. Family practitioners must respect the dignity and promote the welfare of the family as a unit; maintain cultural sensitivity, confidentiality and privacy while respecting differing views toward disclosure of information; and uphold the professional laws of the state. In the end, it comes down to a very complex question: How does the family practitioner work with the family, both as a group and individually, demonstrate sensitivity for the family's perspective, and decide what constitutes the family's welfare?
As anyone who has ever read their profession's ethical codes soon learns, ethical codes primarily provide guidance, rather than absolute directives, for professional activity. Having clear and concise code would make clinical life so much easier. Ethical dilemmas would surface and answers would be found in some section of a code of ethics; further, a concrete requirement for action would be immediately clear. And once in a while, we can actually find clear directives in our standards of practice: Don't have sex with your clients; do not let clients harm self or others; and provide informed consent are a few examples. Most ethical dilemmas, however, are much more difficult to understand and resolve. One separate example, the ACA Code of Ethics encourages counselors to avoid nonprofessional relationships, except when "the interaction is potentially beneficial to the client." Divergently, the American Association for Marriage and Family Therapists (AAMFT) requires that therapists, "make every effort to avoid conditions and multiple relationships with clients that could impair professional judgment or increase the risk of exploitation. Such relationships include, but are not limited to, business or close personal relationships with a client or the client's immediate family. These two codes are contradictory in their guidelines for therapists to be involved in services or products provided by a client which complicates what exactly a family therapist should be allowed to do. In short, it all comes down to my professional judgment and motivation; whether it is a duty to respectfully follow perhaps multiple codes of ethics; or a desire to avoid legal entanglements.
To return to the case at hand, a similar divergence exists between the ACA and AAMFT guidelines as they relate to confidentiality. The ACA states, "In situations involving multiple clients, counselors provide individual clients with only those parts of records that related directly to them and do not include confidential information related to any other client." (Section B.6.d) In contrast, the AAMFT only states, "Marriage and family therapists store, safeguard, and dispose of client records in ways that maintain confidentiality and in accord with applicable laws and professional standards." (Section 2.4) The distinction can be seen as how it relates to family therapy with multiple individuals with conflicting confidentiality demands. The key is to understand the core issues at stake in each party's requests and to weight these appropriately in the context of dignity, justice and culture sensitivity to achieve the best possible outcome.
Family therapists of course do not operate in a void of their own ethics and organization guidelines. In Nevada there is significant legal rulings that relate to patient confidentiality. The federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule protects the confidentiality of health information in Nevada. Nevada also has some confidentiality statutes that apply in specific circumstances to protect specific records. For example, one statute protects the confidentiality of patients in medical facilities (N.R.S. § 449.720). Health care providers must follow both the federal HIPAA Privacy Rule and applicable state law. In general, if the federal and state laws conflict and the state law provides greater confidentiality protection than HIPAA, providers must follow state law. When HIPAA provides greater protection, providers must follow. In addition, other federal laws and regulations, such as Title X, also may apply in certain circumstances, depending on the type of service provided or the funding source for the service, among other things. In short, the laws which govern the state of Nevada lie strongly on the side of confidentiality in this case. Even if the adult child was only at the session briefly he should have been consulted and asked to grant permission before any records involving him were released from the family therapist.
So if a therapist cannot look for guidance from ethical guidelines or legal statutes, the solution must come from their own experience. By applying a decision-making model to the case, various courses of action can be examined and the best outcome obtained. The first step before any decisions are made is to prepare the groundwork. Have all adults at the time of therapy given consent to information disclosure? The privileges, motivations and reasons granted by the dominant, most-involved or paying individuals in the family should not cloud the therapist's concerns for the others who might be younger, less-involved adults in the family. Once everyone has agreed to information sharing if appropriate, the reasons for the request to break confidentiality should be examined. Is the request in the best interest of the family? Does the act of divulging respect the dignity and promote the welfare of the family as a unit; maintain cultural sensitivity, confidentiality and privacy while respecting differing views of individuals; and maintaining the professional laws of the state. If these requirements are met, the question then comes up in regards to what material is actually being disclosed as not all information is equal in its impact. For example, incest, child abuse and substance abuse can have significant repercussion on a person's career and the sensitive nature of this information should pass a higher threshold of need for it to be divulged.
In reflecting on the case at hand, I would decide that the request meets the first requirement as ensuring that consent was given before they engaged in therapy. On the second requirement, proper information in a custody hearing is critical despite the adult child's concerns that the entire matter is simply bickering. The request is therefore reasonable. On the third requirement, no information is provided that sensitive material was discussed that would negatively impact the life or career of the adult who just stopped in temporarily to participate. In conclusion, I would lean towards releasing the information due to the pressing need that adequate custody be achieved. This three-step algorithm of consent, cause and impact can effectively guide confidentiality-release decisions in other vexing scenarios.
On reflecting on the decision a number of pros and cons stem from the decision and course of action. The pros are that the major players in the family will be satisfied as their wishes were respected by the therapists, hopefully the information will allow the court to make a more effective decision in weighing which parent should achieve custody and the action is in line with ethical and legal guidelines. On the other hand, the cons are that the wishes of the individual dissenting adult child were not granted, the information will be used by one parent against the other with an unclear impact on the welfare of the family and lastly it is unclear the exact motivation of the adult child's request and how this information might in some manner impact them. For example, it is possible that in their professional or personal life, that the proceedings would harm their livelihood.
It is also important to examine how the decision to break confidentiality will impact future therapy with this family. Not that the goal of pursuing further therapy should influence the course of action regarding the…