This paper examines authorized mandatory disclosure as a regulatory concept spanning healthcare, business, and the criminal justice system. It defines key terms—mandate, disclosure, and authorization—and surveys multiple types of mandated disclosure, including full versus anonymous disclosure, HIV status reporting, child sexual abuse disclosure, and criminal record checks. The paper also addresses ethical dilemmas faced by therapists, substance abuse counselors, and correctional providers. It concludes with an overview of the APA Code of Ethics and state-level mandatory reporting obligations, illustrating how disclosure laws simultaneously protect individuals and create complex legal and ethical tensions for professionals.
Mandatory disclosure is an issue that affects many different facets of life. The set of laws and regulations known as mandatory disclosure is designed to provide various entities with information that protects the interests of businesses, the legal system, and individuals. This paper explores the concept of authorized mandatory disclosure, defines its core terms, examines different types of authorized mandated disclosure, and considers the Code of Ethics and mandatory state reporting obligations.
To mandate simply means to assign as a mandate—to require something, as by law; to make mandatory. A mandate can also be defined as "an authoritative command; especially: a formal order from a superior court or official to an inferior one" ("mandates"). There are many mandates in society that are in place to ensure that business and legal actions are conducted in a consistent and streamlined manner.
Disclosure is defined as the release of information about a person, entity, or corporation. It encompasses the filing of documents and statements required by law; in litigation, it refers to the release of documents and other information subpoenaed or otherwise sought by the opposing side. Disclosures allow everyone involved in a transaction or interaction to present the relevant information.
Authorization simply means giving official approval or permission for something—for example, a housing project approved by a city government. Authorization gives an entity the right to act in certain ways and is typically handled by people in positions of authority or by government representatives.
Authorized mandatory disclosure is a regulatory tool that exists within the context of business, healthcare, and the criminal justice system. In each context, different regulations must be adhered to; mandatory disclosure laws are always designed to protect all parties in any given situation or action.
Full disclosure refers to the practice of revealing the whole truth, regardless of the discipline in which the term is applied. For instance, in the context of cash tender offers in the United States, the concept of full disclosure is governed by the Williams Act.
The Williams Act of 1968 amended the Securities and Exchange Act of 1934 (15 U.S.C.A. § 78a et seq.) to require mandatory disclosure of information regarding cash tender offers. When an individual, group, or corporation seeks to acquire control of another corporation, it may make a tender offer—a proposal to buy shares of stock from stockholders for cash or some type of corporate security of the acquiring company. Since the mid-1960s, cash tender offers for corporate takeovers have become favored over the traditional alternative, the proxy campaign. A proxy campaign is an attempt to obtain the votes of enough shareholders to gain control of a corporation's board of directors. Because of abuses with cash tender offers, Congress passed the Williams Act in 1968, whose purpose is to require full and fair disclosure for the benefit of stockholders, while at the same time providing the offeror and management equal opportunity to fairly present their cases ("Williams Act").
In other realms, such as healthcare, the laws governing full disclosure involve wording and details relevant to the medical community. However, in each situation involving full disclosure, the basic premise is to reveal the whole truth.
The major difference between anonymous disclosure and full disclosure is that with anonymous disclosure, the person revealing the information may not be known or may be held in secret. In many cases, anonymous disclosure is permitted and used when the person disclosing information needs to be protected from the entity the information concerns. Garde-Perik et al. (2008) found that people often choose anonymous disclosure because they want to ensure their privacy, whereas people choose full disclosure because of its expected benefits.
Whether disclosure is full or anonymous, many difficulties can arise from certain types of disclosure. These difficulties frequently emerge in relation to HIV status disclosures. Throughout the world there have been cases of individuals who knowingly withheld their HIV status from HIV-negative partners and subsequently infected those partners. In some instances, such individuals have been charged with assault and even murder. These charges arise because many countries have laws that mandate disclosure of a positive HIV status to sexual partners.
For instance, Holmes (2006) explains that "the Supreme Court of Canada ruled that every HIV-positive person has a legal obligation to disclose his or her HIV status where he or she engages in a sexual activity that poses a significant risk of serious bodily harm [italics added] (i.e., transmission of HIV) to another person" (Canadian AIDS Society, 2004, pp. 1–5, quoted in Holmes, 2006). Subsequent to this ruling, the Canadian AIDS Society established various guidelines pertaining to consent. There are also laws specifically designed to address the responsibilities of healthcare professionals regarding disclosure and HIV-positive clients. Under Canadian law, when healthcare professionals counsel HIV-positive individuals, they are not legally obligated to inform law enforcement that the client is engaged in potentially criminal activities. However, there are two circumstances under which legal action could be brought against a health professional: first, a civil action could be initiated if a client's partner believes the healthcare professional failed to prevent exposure to HIV; second, an HIV-positive client could bring an action for breach of confidentiality if the professional discloses the client's HIV status without authorization.
This issue becomes further complicated when individuals knowingly engage in risky behaviors such as barebacking and bug chasing. Barebacking refers to voluntary unprotected anal intercourse and constitutes a sexual practice in which condom use is explicitly and consciously excluded; its popularity has increased drastically in recent years (Holmes, 2006). Bug chasing is a practice in which HIV-negative people seek out HIV-positive partners for unprotected sex with the deliberate intention of contracting HIV.
Both barebacking and bug chasing pose difficult questions regarding the disclosure of HIV status under the laws described above. A particular tension exists in that the two grounds for legal action against a nurse are in direct conflict with each other: a nurse can be held liable both for failing to disclose a client's HIV status to a partner and for disclosing that same status. This is just one example of the issues that arise around disclosure in a medical context, where laws were often not written with practices such as barebacking and bug chasing in mind, leaving healthcare professionals in ethical and legal jeopardy regardless of the choice they make.
There are both risks and benefits associated with disclosing HIV status, particularly among African-American women. Black and Shandor (2002) examined the extent of disclosure that HIV-positive African-American women chose to engage in after learning of their status. The research found that the decision of whom to tell was shaped heavily by factors such as stigma, shame, and a simultaneous need for support. The stigma surrounding an HIV-positive status is compounded in communities where such a status is associated with homosexuality, making disclosure especially difficult. At the same time, disclosure is often necessary because it enables individuals to seek and receive appropriate support—support that is essential for anyone living with HIV.
The research found that among the women studied, "risks of telling were fueled by societal and experienced stigma associated with HIV, whereas the benefits were primarily fueled by personal needs. The calculus of disclosure was a recursive process, with decisions made and remade over time. Disclosure patterns ranged from secretive to full disclosure" (Black & Shandor, 2002). Status disclosure is also important on a community level because it raises awareness about HIV and the reality of infection.
"Child abuse disclosure barriers and counselor ethics"
"APA privacy standards and correctional disclosure rules"
"Illinois mandated reporting law and paper summary"
You’re 45% through this paper. Sign up to read the remaining 3 sections.
Sign Up Now — Instant Access Already a member? Log inAlways verify citation format against your institution’s current style guide requirements.