ETH1101 - SECTION 7: ANALYSIS OF THE SCENARIOS
John M. is a licensed social worker. He is currently seeing Brad S. in counseling for depression. Brad is the president of a bank that is about to enter into a merger with another bank. He says that John should purchase some shares of stock in the bank because the stock price is going to go up significantly. Are there any ethical concerns with John buying the suggested stock? Upon what principles related to ethics in counseling do you base your opinion?
Ethical Decision Process Worksheet
Client Name: Date/Time:
Nature of ethical dilemma:
What knowledge must be known to address this ethical dilemma? (laws and statutes, regulations, code of ethics sections, moral considerations, etc.)
What ethical principles and considerations are in conflict?
What model(s) of ethical decision making will be used to address this ethical dilemma?
What other parties will be involved in examining and resolving this ethical dilemma?
What are the best potential solutions to resolve this ethical dilemma?
What are the strengths and weakness of each potential solution (Consequentialist test, Fairness test, Enduring Values test, Light of Day test)?
What solution has been selected to address the ethical dilemma?
What occurred as the result of the implementation of this selection?
What changes to the ethical decision were implemented based upon assessment?
This scenario offers our first chance to look at our stages and our decision tree as model within the use of the Ethical Decision Process Worksheet.
Let's begin with an exploration of the nature of the ethical dilemma. John's client has provided him with confidential information that might have some personal value to John should he elect to act on that knowledge. However, this knowledge must be examined in light of whether it would constitute legal and ethical behavior on John's part. John's autonomy about taking care of his personal finances is in conflict with what constitutes proper behavior in his role as a clinician.
The Knowledge Stage would involve doing some further exploration about what is known about laws, statutes, and ethical considerations that may define this action as inappropriate. If this information is not immediately understood by John, this stage of the decision making process would direct him towards research and/or consultation to determine appropriate standards in this area.
The next step would be concerned with identification, beginning with clear understanding about who the client is. There is little question about who the client is, so the identification process is simplified in this regard.
We would next look to define in further detail what principles and interests may be in conflict. In this regard, we also begin the application of the ethical decision making tree as a foundation model for our examination. We might also consider bringing into the process one or more other models of ethical decision making, based upon our determination of what model is most useful for reaching a viable solution.
In this instance, however, the ethical decision making tree is a generally good model to utilize. As we identify the competing principles and interests, we begin by looking at the most important principles and working our way down the decision tree.
At first glance, it does not appear that harm will come directly to the client from our actions in this situation. Looking at all aspects of this situation, as well as what may evolve from our decision, is this true? Let us come back to this in a minute.
When we get to the second principle, however, as well as to the third principle, we begin to see some more obvious problems. These problems may come back to harm the client.
There is a test for the clinician in this offer of free advice. The client is offering "insider information", a legal term related to stock transactions. Should the clinician choose to act on this insider information, he or she would be breaking the law. This would reveal something important to the client that could have implications for the therapeutic relationship, and the integrity of the profession.
Should the clinician engage in an illegal act, it tells the client that the clinician is willing to put his or her needs or interests ahead of clearly defined standards of morality. This could clearly weaken the foundation of trust in the relationship.
It also could come back and place the client in jeopardy, since the client was the original source of the insider information. The temptation for the clinician lies in the surfacing of self-interest. There may be the potential to make some easy money, and who would know? The client would know, and it is sometimes difficult to assess how this would affect the clinical relationship, and what the client might do.
The clinician's responsibilities - to the client and to the profession - make it a poor ethical choice to profit from this insider information. This will be supported in most codes by statutes concerned with exploiting clients for financial or personal advantage, and with dual relationships.
In the identification stage, therefore, there will be two possible choices that we will examine in the evaluation stage of the ethical decision making process: use the advice or don't use the advice.
The selection of the correct ethical decision in this scenario is relatively easy in this first scenario. The solution must still be assessed for possible negative consequences, but this should be handled in a relatively straightforward way.
In less clear cut circumstances, it is also helpful to consider what other parties might be involved in making this decision. The clear advantage of bringing other parties into this process has to do with the sharing of both responsibility and risk for the selection of the decision.
Because the solution to this ethical dilemma is, or at least should be, quite obvious, there would be little need to move through and record the assessment and adaptation stages of the ethical decision making process.
Jim P. is a licensed clinician, specializing in work with adolescents who have Attention Deficit Disorder. He works in a small town where there are few clinical professionals and therefore few treatment options. He receives a call from Rhonda M., who is requesting services for her oldest son. Several minutes into the conversation, Jim realizes that his own son is in the same school class as is Rhonda's younger son. He also realizes that he has served as a sports coach for Rhonda's younger son, and has met Rhonda numerous times in that capacity. Are there any ethical concerns with Jim providing services to this family? Upon what principles related to ethics in counseling do you base your opinion? What options does Jim have to find the best ethical solution for this scenario?
From our knowledge of the ethical codes, we understand that there are special dangers in dual relationships with clients. Dual relationships can confuse the nature of the therapeutic relationship and interfere with the smooth course of counseling. We would identify this as a potential ethical problem in this scenario.
We would also identify as a problem the fact that there are not too many treatment options in this small town. In some very rural communities, there may be only a single clinician in a radius of 50 or 100 miles.
We would also identify as a problem the fact that the potential client's problems may require a special competency. This raises questions about possible referral to another clinician if the clinician would have to operate outside of his or her area of competence.
This highlights the importance of identifying and then evaluating all aspects of the ethical dilemma and of the potential solutions to the dilemma.
The best treatment option for this case would be a referral to another clinician who has the competence to work with the special issues involved. If there is such a clinician available to take this case, this would best balance the competing interests and principles.
If there is not a clinician with the competence to handle this case, the evaluation process must be engaged in to look at other options.
How much harm to the therapeutic relationship will be created by the presence of a pre-existing, personal relationship? Will it outweigh the potential harm to the client if no treatment is available?
Often, clinicians in small communities are comfortable and familiar with confronting the issue of dual relationships. At PTA meetings, in the doctor's office, at the grocery store, clients are likely to be everywhere, and the clinician must work hard to protect confidentiality and the integrity of the profession.
It places an extra burden on the clinician to act responsibly in his or her personal life - to be in the ethical mode at all times - since there is a reduced degree of anonymity in these communities.
It is a more difficult life for the clinician, as his or her professional responsibilities intrude into the personal sphere, but it is possible to serve the community while living among it.
When the clinician has done and does a good job of acting responsibly in the community, he or she can better balance the personal and professional relationships when they conflict in this way.
This is also likely to be a situation in which Jim would want to involve the client and the client's mother in the decision making process, to assure that they are comfortable with the dual relationships.
What about Jim's autonomy in this scenario? What if he is uncomfortable about working with this family? What if he resents having another intrusion into his personal life from a personal contact requesting services from him? Remember, as yet he has not agreed that this family will become a client.
When Jim takes this phone call, he assumes a certain degree of responsibility for evaluating the risks to the potential client from his choices. If his refusal to provide services creates substantial harm for the potential client, he may be placing himself in an ethically difficult position.
Again, in evaluating an ethical dilemma, it is important to look at all aspects of the situation and the options for resolving the situation.
In a small community such as this, Jim's refusal to treat a client in need may also have ripple effects to the other clients that he is treating. It may alter the level of trust accorded to him by the other clients who look to him for responsible decision making. In small communities, it may not take too long for information of this sort to be distributed to most of the town.
If no other reasonable treatment options exist for this client, and if harm may come to the client should Jim refuse to treat him, it is probably more ethical for Jim to assume responsibility for the case, in spite of the dual relationship issues.
This is in accordance with the ordering of the principles shown in the decision tree; the principle of doing not harm outweighs the concerns about the dual relationship.
Please note, however, that if there is not the likelihood of substantial harm to the client from Jim declining to offer treatment, then the balance may be evaluated differently.
Suppose that the potential client had mild ADD, that was, for the most part, being handled successfully. Suppose the treatment was not so apparently a clinical necessity. Then suppose that Jim was more personally involved with the family, for instance a close personal friend of the potential client's father.
These changes in the different aspects of this scenario would change the results of the evaluation process, and may suggest a different outcome to the situation. With the removal of the potential harm to the client, the dual relationship aspect of the situation begins to carry more weight.
It is important not to rush to a quick decision on difficult ethical dilemmas such as this. It is important not to look at one section of the ethical code to provide a simple answer for a complex problem.
It is important to think the dilemma through, to follow the stages and arrive at the most solution that finds the best balance of the competing principles and interests, and best conforms to the primary purposes of the mental health profession.
Julie R. is a licensed clinician. She has been seeing Gloria K. in counseling for about a year. Among other issues, Gloria has been discussing her relationship with Bob O., a local real estate developer. Gloria has reported to Julie that her boyfriend is unscrupulous, and has been bragging about the shoddy construction he has been using to build units cheaply in a new development, while still selling the units for a high price. Quite coincidentally, Julie has another client who is thinking of purchasing a unit in this development. Would it be ethical for Julie to warn her client about making a purchase in this development? Upon what principles related to ethics in counseling do you base your opinion?
In this scenario, two competing principles and interests can be identified. The first is the issue of confidentiality, which has implications both for the integrity of the mental health profession and for the well being of the client, Gloria, who is revealing confidential information.
The second principle or interest at stake is the well being of Julie's other client, who may become the victim of the possible unscrupulous activities of Gloria's boyfriend.
This scenario again highlights the importance of looking at all aspects of a situation as you begin the process of evaluation. It also highlights the principle of expanding your range of options when you look for possible solutions.
It is important to remember, in evaluating all the aspects of this scenario, the difference between fact and hearsay. Because Gloria is repeating what she has heard her boyfriend say, the information she is giving may be colored or tainted by the nature of the relationship with her boyfriend. It may not contain the truth, the whole truth and nothing but the truth. This must be considered in the evaluation.
That being said, because some kinds of harm to clients outweigh other considerations, we still must decide whether this information reaches a threshold for breaking confidentiality.
The harm that could come to Julie's other client is not life threatening, nor or is likely to cause irremediable emotional distress. On the surface, it does not look sufficient to warrant a break in confidentiality.
Moreover, it must also be considered that harm could come to Gloria if Julie breaks confidentiality. Gloria's boyfriend is likely not to have told many people of his unethical actions. It may not be too difficult to trace back the lines of communication to Gloria if a potential buyer confronts Bob about this situation.
It is unclear, given the information we have to work with, what the effects of this might be for Gloria, but it is probable that some harm may come to her through her relationship problems. This harm may be equivalent to the harm from which Julie's other patient is spared.
In this situation, the more ethical solution is to protect confidentiality. Are there other options here that may be considered in terms of offering protections to both clients?
It is possible for Julie to warn her other client of potential risks in her choice of housing purchases without breaking confidentiality, if she is willing to expand her range of options and come to a creative solution.
The way for Julie to do this is to express the concern, and possible solutions to the concern, in general principles, rather than through using specific knowledge of the actual decision involved.
Julie could simply tell her other client that housing purchases are important financial decisions, and as such require great thought, research, planning and other steps. Julie could then, using these abstract concepts, help her client organize an approach to this purchase decision that would protect her.
While the impetus for this careful approach is information that Julie should not necessarily have available, nothing in this approach presents a risk in terms of violating confidentiality. Julie must be careful how it is presented to her other client, but it is an intervention that would make sense even if the confidential information was not a factor.
Once this approach is presented to her other client, Julie has armed her client with the tools to approach this decision in the right way. If her client autonomously does not follow this advice, Julie is not responsible for the harm that follows.
After selecting this, or any other approach, Julie must continue to assess its effects and adapt the intervention as needed.
Jessica P. is a licensed clinician. At a party one night, she meets a former client, Edward G. She saw this client for a single assessment session ten years prior, when she was working as a clinical professional for the Employee Assistance Program offered by the client's company. Due to the public nature of the party, Jessica is not at liberty to notify Edward of this prior client/clinical professional relationship, and he appears not to remember their session together. At the time of this session, the client was seeking help for grief issues related to the death of his father. During the single session, the client reported that he had had a very good relationship with a clinical professional when he had been fifteen, and had resolved most other emotional issues during that treatment. Towards the end of the party, Edward asks Jessica if she would like to go out on a date with him. Is it ethical for Jessica to accept a date with this former client? Upon what principles related to ethics in counseling do you base your opinion?
This scenario provoked the greatest amount of disagreement among our panel of experts. This is partly due to the different opinions around this issue to be found in the codes of ethics for different licensures for clinicians.
The central issue that was identified was whether Edward could still be considered a client ten years after a single assessment session. If he is still considered a client, then a romantic relationship would invoke concerns about a dual relationship, or possibly engaging in sexual relations with a client, should the relationship move in that direction.
If the clinician's profession currently works under a code that states that a former client is always considered a client under these circumstances, then this is a considerable factor in making this ethical decision. For the sake of analysis, however, let us pursue the decision making process with this scenario, and examine it in light of the decision tree.
Is there the potential for harm to come to the client if the clinician accepts a date, based on the evidence presented? It is unlikely. Is there a risk to the integrity of the profession if the clinician accepts a date? Only if the clinician operates outside of the code for her profession, in which case she could be accused of not following the ethical principles agreed to by a consensus of her peers.
Is there a threat to the autonomy of the client if the clinician accepts a date? This issue might require more evaluation. In all likelihood, it would be important for Jessica to clarify the pre-existing professional relationship if she were inclined to accept the date offer.
If this pre-existing relationship were not a concern for Edward, it would actually be more restrictive to his autonomy for Jessica to refuse to even consider dating him.
Will Jessica's acceptance of a date have any impact on whether the client's therapy is promoted? Not at this point in time. There does not appear to be any current therapeutic relationship to be affected by this concern.
Even if the code of ethics for Jessica's profession allowed dating after a specified period of time, it would be extremely important that she conduct a very thorough examination of all the aspects of this situation. To quote the code of ethics for clinical professionals and social workers from the state of Ohio:
"Clinical professionals and social workers who choose to engage in such a relationship ... have the responsibility to thoroughly examine and document that such a relationship does not have an exploitative nature, based upon factors such as duration of therapy, amount of time since therapy, termination circumstances, client's personal history and mental status, adverse impact on the client and actions by the professional suggesting a plan with the client after termination."
This particular issue in counseling is likely to continue to be debated, without complete clarity and resolution for the foreseeable future. Clinicians are advised to proceed judiciously, with careful evaluation of the fine details, and with absolute clarity concerning whether one's judgment is being impaired by emotional considerations.
The clinician is also advised to be very cautious in choosing to abandon the protections offered by a more strict reading of the code of ethics. Ultimately, however, the clinician will need to assume responsibility for his or her own decisions in cases such as these.
Janet P. is a licensed clinician who specializes in Christian counseling. She has been seeing Marjorie B. for counseling. Marjorie has been having marital problems. As the counseling progresses, Janet's assessment is that Marjorie's goals for counseling would be better reached if the counseling were to move to couple counseling. Marjorie requests that Janet do the counseling, particularly because one of the primary problems between the couple is the refusal of Marjorie's husband to raise her children in a Christian environment. Is it ethical for Janet to agree to provide Christian based counseling for this couple? Upon what principles related to ethics in counseling do you base your opinion?
This scenario has been introduced in order to ask the question, “who is the client?”, and what principles and interests come into play for multiple clients. The introduction of additional clients adds another level of complexity to the ethical decision making process, as you must look at the stages and the decision tree as they related to both parties in this scenario.
Should Janet elect to include Marjorie's husband in marital counseling, she must now consider whether the course of treatment harms him, promotes his autonomy, promotes his well being, in addition to whether it does the same for Marjorie.
Based upon the information that is contained in the scenario, it is possible that the values held by Marjorie's husband are different than those held by Marjorie.
It appears more likely that Marjorie is attempting to enlist Janet in changing these values. Since Janet shares these values, as is evidenced by her specialization in Christian counseling, she might be viewed by Marjorie as an easy ally.
The difficult issue for Marjorie is that she works under a code of ethics that places autonomy as a higher principle than any single code of ethics contained in religious or cultural ideals. If she chooses to honor her client's request, using her position as a clinician to attempt to persuade Marjorie's husband to become "more Christian", she violates his right to autonomy. Following the decision tree, his right to autonomy supersedes her right to autonomy in choosing to impose her own set of moral values.
Janet is allowed, under her counseling code of ethics, to offer Christian counseling to any client seeking it. In order to respect a client's right to autonomy, however, she may not use her position to attempt religious conversions.
If Janet should elect to see this couple, she is obligated to clarify to Marjorie the limitations on advocacy of Christian values at the expense of the autonomy of Marjorie's husband. If Janet is unable, or unwilling, to see Marjorie's husband unless he autonomously agrees to a Christian based agenda, it is more ethical for her to make a referral to a different clinician. Because of the emotional commitments that each clinician makes to his or her own personal set of religious and cultural values, this can be one of the single most difficult and confusing areas for clinicians in the study and application of ethics.
There are, of course, concerns from various corners of the treatment community that therapy itself is driven by values imposed upon clinicians and clients by the dominant culture. Concepts such as personal growth and individuation, client autonomy, and other core values of treatment could be characterized as indigenous to Western culture. As such, they could also be seen as hostile to the values of a number of other cultures.
While a full examination of this issue is beyond the scope of this introductory course, it bears repeating that each individual clinician must carefully examine his or her values to make sure that they are not being imposed upon a client in ways that are not thought through carefully.
Eileen G. is a licensed clinician, specializing in bi-polar disorder. Her new intake, Adam D. has brought along records from a prior assessment by a psychologist. The assessment included psychological testing, and the results indicate that Adam has bi-polar disorder. Adam presents as very distressed, as well as somewhat obsessive and grandiose in his thinking. Early in the session, he asks Eileen if she provides Rational Emotive Therapy (R.E.T.), which he insists is the "most effective and successful therapeutic approach", and the only thing that could help him. Eileen, who does not specialize in R.E.T., attempts to discuss with Adam the implications of bi-polar disorder, but Adam continues to return to his request for R.E.T., and becomes increasingly belligerent. Eileen knows there is no other provider in her area who works both with bi-polar and R.E.T. What would be the most ethical way to proceed in this case? Upon what principles do you base your decision?
In examining this scenario, there are several important principles and interests that can be identified. Clearly, one of these is the client's autonomy. This has ethical and practical components attached to it.
Eileen would like to get Adam to accept the counseling that would be most beneficial to him. She would also like to engage him in counseling that may be instrumental in protecting him from harm that may follow from symptoms of his bi-polar disorder. These principles are important ethical considerations.
However much Eileen would like this for Adam, however, he does not necessarily need to accept her treatment goals or treatment decisions. From a practical standpoint, he may choose to make poor decisions, with Eileen relatively helpless to do much about it.
The principle of autonomy as an inalienable right poses a clear obstacle to Eileen's preference for treatment in this scenario - unless of course, in her evaluation, she determines that Adam lacks the competence to make his own decisions, or is at imminent risk from his poor decisions.
In either of these two cases, the demand to protect the client from harm would supersede the right to autonomy. Such a determination would, however, be made under a very high burden of proof. It is unclear that Eileen could prove that incompetence or imminent risk was in effect.
This does not mean that Eileen's most ethical decision is to simply accede to the client's preference for treatment. She is still in a position to educate the client and advocate for good treatment.
The client, of course, may not be receptive even to this. While this may leave Eileen in a defensible ethical position, should she give the client what he wants, does it represent the decision that strikes the best balance between all the competing principles and interests?
This situation, like so many situations faced by clinicians, shows the difference between ethics in the abstract, and ethical decision making in the real world. There is a sense, in the middle of the muddle, that there must be something better to do, something more ethical than letting the client choose poorly.
The secret is not to abandon the decision tree entirely, nor to give up on the stages of ethical decision making, but to look at the areas of flexibility found within these things.
The possible solution, or solutions, to this situation, can be found in the idea of expanding as much as possible the range of options for addressing the problem. As is often the case in counseling, this can be envisioned as taking sets of wonderful theories, and bending and stretching them to make them fit in a real world that doesn't always subscribe to good theory.
In this case, there are at least two creative options that the client may find acceptable. The first is to refer the client to the clinician that specializes in RET while requesting a release of information that would allow Eileen to transfer information to the new clinician.
In this transfer of information, Eileen could forewarn the new clinician about the client's bi-polar disorder, and perhaps consult with her about management of the case.
Another possible approach is for Eileen to attempt to persuade the client to remain with her, possibly by pledging to expand her training to include RET principles and concepts. In this way, she offers the client a measure of respect for his autonomy, and hopefully accomplishes the goal of maintaining the therapeutic connection until the client can be stabilized with whatever combination of treatment approaches proves to be effective.
Both of these approaches have ethical problems. In either instance, a clinician would be asked to operate outside of his or her area of competence. Furthermore, Eileen may need to be less than perfectly honest in what she tells the client in either of these solutions. She is attempting to persuade a client who has a less than solid hold on reality, and she may need to say things that are more effective than they are true in order to direct the treatment process to a better place.
This is in keeping with the first principle, in which the need to protect a client from harm may supersede all other considerations. If Eileen's intervention can be seen as protecting the client from abandoning counseling, which may be important for protecting the client from deteriorating further, it might justify straining the integrity of the mental health profession by being less than perfectly honest.
It is also in keeping with what Salvador Minuchin described as the first goal of counseling when the counseling is clearly needed: to assure that the client will return for the next session.
There are, of course, other possible options that Eileen could try. It would, however, be important for her to conduct a thorough analysis of each other option that was considered, weighing the possible outcomes in light of the decision tree.
The options are also susceptible to change over time. The process of evaluation can change over the course of several sessions, or sometimes even or the course of a single session. If, for instance, Adam were to deteriorate in the course of his session so that he demonstrated imminent risk or incompetence, then Eileen's ethical evaluation would have to keep pace.
It may be instructive for our trainees to know that this ethical dilemma was also a difficult one for our panel of experts. As good, concerned clinicians, they worried about the safety and well being of Adam, but ultimately decided that he must be allowed the autonomy of his own decisions. They decided that the ethical choice for Eileen was to allow his decision to outweigh her concerns for his well being.
Joseph R. is a clinical director for a company that provides Employee Assistance Programs (EAPs). He has received an urgent request from one of his client companies for an immediate Critical Incident Stress Debriefing (CISD). The only staff member available to do this is a new hire, Lynn R. While Lynn has many years of counseling experience, she has not had much experience in providing EAP services, and has neither received any formal training in CISD, nor ever done one. Joseph is concerned that if Lynn does not do the CISD, it will not get done. Under the circumstances, is it ethical for Joseph to ask Lynn to provide this service? Upon what principles related to ethics in counseling do you base your opinion?
There are three important and connected questions that must be answered in the identification stage of this ethical decision. The first is: who is the client? The second is: will Lynn be operating outside of her area of competence if she performs the CISD? The third is: will harm come to the client(s) if Lynn does not perform this CISD?
Counseling done in the context of Employee Assistance Programs (EAPs) is faced with complex client relationships. The language of EAPs speaks to this as a "Dual Client Relationship". One of the clients is the client company who pays for the services. The other clients are the employees or dependents who receive the actual counseling services. Under the contract of the EAP, both have certain rights and privileges. This gets complicated when it comes to ethical decision making.
The client who is requesting services - the company - is different than the clients who will be receiving services - the employees who need the CISD. This is important, because in order to respect the client's autonomy, the client must be involved in important treatment decisions. In this instance, one of the important treatment decisions is whether Lynn should proceed with the CISD.
If Lynn were fully qualified to provide this service, if the performance of CISD was within her area of competence, this would not be an issue. Because she is not fully qualified, it becomes the client's decision, once the client has been adequately briefed, whether the treatment relationship should be entered into by both parties. The client is entitled to informed consent about this issue. In this case, however, the recipients of the service may not be given the option of informed consent, hence the ethical problem.
The third dilemma is whether harm may come to the clients if their need for intervention is left unanswered. If this potential harm outweighs the concerns about the relative inexperience of the clinician, then there may be a shift in the ethical equation.
There are, however, additional concerns here. Are there not other options for the company that provides the EAP than to send out an inexperienced clinician to perform a relatively complicated intervention? From what source does this scarcity of resources emanate for the EAP company?
Often, the problem lies more in the economics of the decision making than in the ethics of the decision making. Whereas there may not be a staff member who is qualified and available to perform a CISD, there are certainly outside clinicians with whom the company may contract to provide this service.
In this issue is pointed out the importance of fully evaluating all aspects of the ethical dilemma. In this instance, the clinical director of the EAP company has unreasonably limited the range of options for solving this dilemma, and has put Lynn in the crosshairs of his ethical decision making. He is now asking her to act outside of her area of competence, creating ethical problems for her.
If there are problems arising in the CISD from her lack of experience, then she will have participated in bringing harm to the clients affected. Furthermore, unlike in the case of clients agreeing voluntarily to see clinicians in training, the clients will not have given informed consent concerning whether they wish to have an inexperienced clinician providing the services. This is not an ethical approach to providing services.
Ellen P. is a clinical professional specializing in substance abuse issues. Among her other clinical tasks, she runs a co-educational relapse prevention group. Many of the members of that group are current or former individual clients. The group has a non-fraternization policy, where group members make a commitment not to date each other. One of her group members, Jill C., has recently stopped coming to the group, and asks to return to individual counseling with Ellen. In the first individual session, she reports that she stopped coming to group so she could have a romantic relationship with Gary M., another member of the relapse prevention group. Gary and Jill have, in fact, gone out with each other on a couple of occasions. Ellen is concerned, because Gary is HIV+, a fact he disclosed to Ellen in individual treatment, but which he did not disclose in the group. Ellen is aware that if the couple becomes sexually active, Gary's HIV status holds serious risks for Jill. Ellen must make a decision about how to protect Jill's well being in light of the risks possibly presented by Gary's HIV status. What are the ethical issues present here and how would you advise Ellen to proceed? Under what principles related to the ethical code for your profession do you base your decision?
This scenario requires the clinician to examine two key ethical principles: do no harm and the integrity of the mental health profession. It will also ultimately highlight the tensions between ethical dimensions of practice and legal dimensions of practice, as well as the fact that there are often no clear answers about resolving ethical dilemmas.
If we were to follow our ethical decision tree strictly, we would come to the conclusion that life and safety outweigh any other considerations. HIV is certainly a potentially life threatening illness, and Jill's right to be protected from contracting it is of considerable importance.
However, as most clinicians are aware, clients with HIV+ are protected by special rights when it comes to issues of confidentiality. These rights are written into law in ways that clearly prohibit the disclosure of their HIV+ status. This law is designed to protect the HIV+ client from discrimination due to their condition, and for the most part serves a very admirable function. However, it creates dilemmas in terms of balancing privacy rights and public health concerns. This is the issue that is playing out in this scenario.
Should the clinician choose to seek guidance from current legal understandings about exactly this kind of dilemma, it may be somewhat discouraging to note that there is the prospect of the Ellen being sued whether Gary's HIV+ status is revealed to Jill or whether it is not revealed. Gary could sue Ellen for violating his privacy rights if she reveals his status, under the laws that protect the confidentiality of HIV+ patients. Jill could sue Ellen for not protecting her safety if Ellen does not protect her safety under duty to warn statutes. The courts have not yet determined definitively what would be the legally defensible route to go in situations of this sort. Each case continues to help shape the landscape in this area.
Where does this leave us? Back in the identification stage of the six stage ethical decision making process. It is important to remember that ethical decision making does not only involve concepts and principles. It also involves process. The abstract principles and interests interplay with real people in real clinical situations in a real world.
In this instance, there are a number of possible solutions that can be searched for that do not involve either the violation of important laws governing confidentiality nor allowing your client to be put at risk. Ellen could, for instance, try to gather information from Jill about whether Gary has told her of his HIV status. If this issue is already known by Jill, then the problem has already been solved, and Ellen's role becomes clearer with regard to protecting Jill's well being.
She could also contact Gary to sound him out on his willingness to let Jill know about his HIV+ status. There can be a graduated approach to gathering information from Gary and insuring that Jill has access to this information. Ellen should first attempt to convince Gary to reveal this information to Jill on a voluntary basis. If he is not comfortable doing this, Ellen can offer to meet with Jill and him to facilitate the process.
If Gary is unwilling to reveal his HIV+ status to Jill, and Ellen has clear knowledge that he intends to put Jill in harm's way with his behaviors, then Ellen may next need to discuss with Gary the legal issues surrounding her duty to warn obligations. This may include possible civil and criminal charges accruing to Gary if he knowingly puts Jill at risk. She can also explain that her duty to warn may not allow her to protect Gary's confidentiality in this case, and that it would better protect Gary's relationship with Jill to start with honesty in this important area.
If Gary declines to cooperate even if Ellen proceeds to tell him of her intention to disclose to Jill his HIV status, then Ellen should probably seek consultation with one or more senior clinicians, and/or legal counsel, documenting each step of her decision making process. However, this process and these possible solutions must be put into place quickly once Ellen is made privy to Jill's relationship with Gary.
The decision that most likely should be made is in keeping with our ethical decision making tree. The first principle remains that of protecting the client from harm. Ultimately – from an ethical perspective at least - this principle supersedes the need to protect the integrity of the profession, under which guidelines for maintaining confidentiality are found. It may even supersede the legal statutes that are in place at any given point in time, particularly if those statutes do not keep up with the pace of societal change.
Even with the advent of better medications for treatment of HIV/AIDS, the harm that would come to Jill from possible transmission of HIV would in all likelihood outweigh Gary's right to confidentiality. In discussion groups at which this scenario was presented, some degree of consensus was reached around this statement of ideals. A more ethical course would like be to place safety above confidentiality.
Our group of respondents did not reach this decision easily nor without disagreement. A great deal of time was spent looking for alternatives that did not put the clinician in the position of having to violate confidentiality. However, when all other options were found wanting, the principle of doing no harm remained and ultimately most directly informed the necessary course of action.
This completes our analysis of the scenarios. How did your answers compare with the responses from our panel of experts?
If there were areas of disagreement, do not be unduly alarmed. Ethical decision making is a difficult and even, at times, a contentious process. The goal of examining these scenarios was not to forge complete agreement on the right solution to each dilemma. These scenarios are not real life, and they leave out a great deal of information that would be available in dealing with ethical dilemmas in the course of a real practice.
The goal was instead to identify a process through which this difficult task might be attempted. The goal was to highlight the principles and interests at stake, and to improve the clarity and understanding about these principles and interests. The goal was to help the clinician enter into this process more prepared and less confused.
This will not protect the clinician from the inherent complexity of making good ethical decisions. In other words, it will not make ethical decision making easy. It will, hopefully, make it easier.
Following our bibliography, we will next turn to the test section which will examine your understanding of the principles learned to this point.