Weighing Patient’s Rights against Psychologist’s Rights

Ethics & Risk Management: Expert Tips VQ: I have a question about the use of e-mails with clients but it may be relevant to larger issues in the therapeutic relationship. Are we allowed to refuse to do certain things that a client requests or must we do everything they want? My usual practice is to let clients know that I communicate by telephone and by voice mail messages; that I don’t communicate by e-mail. The father of a child I am treating is in the middle of a legal separation process and he wants me to “confirm” everything in e-mails the day after each session with my client. He is being very pushy with me and I feel like he’s actually bullying me about this. I know we focus a lot on clients’ rights, but what are my rights (and obligations) in this situation?

A: This is an excellent question that raises a number of important issues that many psychologists may be confronted with over time. A major focus of our profession is the welfare of the consumer of our professional services. The APA Ethics Code (APA, 2002) makes it clear in its General Principles that we seek to help others and minimize the risks of harm, that we fulfill our agreements and act with integrity, that we provide fair and equitable treatment of all and that we act with respect for individual differences.

Specific Ethical Standards address avoiding harm, conflicts of interest and exploitative relationships. Thus, a major emphasis of our profession’s ethics code is on providing high quality professional services that are in the recipient’s best interests, taking clear steps to minimize the risk of exploitation or harm.

But, the situation you describe is less than clear cut. The issue of who your client is must be thoughtfully addressed. Assuming that your client is a minor and could not consent to his or her own treatment, it is likely that the parent is the actual “client,” that is, the one who has provided consent. Since this is a separation/divorce situation this further complicates matters.

Based on what you have said, it appears that thus far there has been no change in the parents’ legal status or rights so they each should be able to consent independently to their child’s treatment and you wouldn’t need consent from both parents. But in these situations it is always best to clarify each individual’s legal status to confirm who has the legal right to consent to a minor child’s treatment.

This situation and your obligations may be viewed under ethical standards 3.10, Informed Consent; 10.01, Informed Consent to Therapy; and 3.07, Third-Party Requests for Services (APA, 2002). All expectations and obligations should be reviewed and clarified from the outset of the professional relationship. For example, Standard 3.07 specifies that:

“When psychologists agree to provide services to a person or entity at the request of a third party, psychologists attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes the role of the psychologist (e.g., therapist, consultant, diagnostician or expert witness), an identification of who is the client, the probable uses of the services provided or the information obtained and the fact that there may be limits to confidentiality.” (p. 1065)

While it is important to clarify who the client is, the more basic underlying issue in these situations is to determine and reach an agreement on to whom you owe an obligation and what obligations you owe each individual (Barnett, Behnke, Rosenthal and Koocher, 2007; Fisher, 2009). All this should be discussed and agreed to in the informed consent process at the outset of the professional relationship and revised or updated if substantive changes occur over the course of time that may necessitate this.

What appears to be not so subtly implied in your question is the father’s possible motivations for pressuring you to “put everything in writing.” The use of e-mails as a means of communication can provide him with “proof” or evidence of what has transpired in treatment and could possibly provide him with ammunition for his legal battle. Such issues speak to the difficulties psychologists and other mental health professionals experience when the clinical and legal realms intersect or overlap (Zimmerman et al., 2009).

One issue of great importance to address in the informed consent process is just what your role will be. It is essential to clarify that you will be providing the child with psychotherapy and that you are not conducting a forensic evaluation to be used in legal proceedings. Since the e-mail communications you describe can easily be misused and at a minimum, used out of context, your desire to avoid e-mail communications makes great sense.

Further, exercising your judgment on the appropriateness of composing and sending these e-mails seems very appropriate in keeping with the need to consider your obligations to each party involved.

By Jeffrey E. Barnett, PsyD, ABPP

Excerpt from Ethics & Risk Management: Expert Tips V, a 2-hour online course that addresses a variety of ethics and risk management topics in the form of 14 archived articles from The National Psychologist. Topics include: (1) Is it kosher for a psychotherapist to serve as an expert witness? (2) Weighing patient’s rights against psychologist’s rights (3) Techno breaches could cost practitioners big bucks (4) Custody cases require special training (5) Too many rules – Risk Management (6) Pay me now, pay me later (7) Business of Practice and Ethics (8) Not all nations share APA’s ethics standards (9) Student/professor dating always questionable (10) Therapists need a strong back-up plan (11) Ethics primer addresses core issues (12) Wintering south can create ethics problems (13) Confidentiality in the 21st Century – Risk Management (14) The fiduciary heart of ethics. This course is intended for psychotherapists of all specialties.

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