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Avoiding Confidentiality Conflicts
Ethics has received a good deal of play in front-page news of the past year. With the advent of national and foreign economic downturns and large increases in numbers of the unemployed, some individuals and corporations, including those who appear to have had a hand in bringing about the economic crisis, have made substantial profits from these developments.1 Their business maneuvers were possibly legal-but were and are they ethical?
Striking closer to home, both prominent and relatively inconspicuous psychiatrists have made the news as a result of allegations of their excessive closeness to the pharmaceutical industry. They have been accused of unethical conflict of interest practices for endorsing medications using fundamentally flawed evidence bases. It has been alleged that pharmaceutical companies’ underwriting of research, publications, and/or talks to physicians exerted undue influence on the funds’ recipients, thus leading to distortions of data presentation and interpretation by the psychiatrists.2 The world of child and adolescent psychiatry has been rocked in recent years by such suggestions3-and also by alleged sexual boundary violations against a former senior representative of the public face of child and adolescent psychiatry.4
With discussions of ethics achieving such prominence, it behooves the psychiatric profession to devote increased attention to the subject.
The four principles of ethical reasoning
Ethics concerns itself with notions of right or better and wrong or poorer behaviors. The reasoning process of physicians about these notions, which involves making judgments and choosing among thought-through alternatives, is implicitly intended to enable practitioners to make choices on the basis of what would be better, good, or right for their patients.5 Ethical dilemmas commonly occur when contradictory potential “right” actions conflict with one another. For example, in the case of a competent, devoutly religious adult patient, a physician might deem a surgical procedure to be clearly indicated, with negative consequences predicted for the patient in the event surgery is not performed. That physician, however, must respect the patient’s choice to refuse the procedure.
By recommending proper treatment in this scenario, the physician adheres to the principle of beneficence. However, this stance conflicts with another major principle-that of autonomy (ie, uncompromised respect for an individual’s right to make decisions for himself or herself). These 2 principles, along with those of nonmaleficence and justice (ie, to treat people equally), make up the 4 principles commonly invoked in the ethical reasoning process.6 When a physician feels squeezed between the colloquial rock and a hard place while trying to do right by a patient, this sensation suggests the presence of an ethical dilemma. Self-sensitization to recognition of this feeling is the most useful tool to begin the process of attempted resolution of ethical dilemmas.
When thinking about ethics, however, practitioners quickly become aware that they are faced with shades of gray, in contrast to diametrically opposed opposites. Thus, despite the injunction to treat all people equally, it seems rational to distinguish among patients on the basis of such factors as degrees of cognitive or affective impairment or capacity. For example, within the world of adults, a flailing, psychotic man is likely to be restrained against his will; by contrast, the psychiatrist must respect the wishes of a competent, chronically and severely depressed but nonsuicidal adult who refuses a recommendation for hospitalization. Similar manifestations of inequality are all the more prevalent in dealings with children.
Two of the most common ethical issues encountered are those of assent/dissent/consent and those of confidentiality. A mother calls to set up an appointment for her 7-year-old child who, for several weeks, has intermittently been physically aggressive with peers in his classroom. The mother notes that when the child was informed of this impending visit, he responded with a vitriolic “I’m not going!” She responded in no uncertain terms, with support from a distance from the child and adolescent psychiatrist (CAP), that he was. And he did.
Contrast this example with that of a parent who requests an appointment for a 16-year-old daughter because of concerns about a drop in grades over the past 3 months. This child similarly refused to consider attendance at an evaluatory meeting. The parent informed her child, in no uncertain terms, that she was indeed going to attend (but the CAP did not endorse this stance). The child prevailed.
What are the ethical issues, and why the different psychiatric stances? Child and adolescent psychiatry deals with individuals undergoing rapid developmental change in physical, cognitive, affective, communicative, and interpersonal spheres. All children deserve respect for their autonomy rights, but the 7- and 16-year-old exist at very different stages of maturation. Thus, it can safely be assumed that the average 7-year-old, because of a less developed intellectual apparatus, has far less of an inkling of the ultimate consequences of his behaviors on his near- and intermediate-term future than does the 16-year-old. Second, it is likely that parents are better able to exert authority over their young school-aged children than they can over their teenagers, who are physically bigger and often more self-sufficient and semiautonomous. Therefore, apparently similar clinical situations demand that CAPs tailor their techniques to different degrees of developmental attainments.
However, from the legal perspective (as distinct from the ethical), similar rules apply to all children up to age 18 years. Parents must consent to treatment; children may assent or dissent.7,8 When guardian and child agree, care can proceed smoothly; when they disagree, resorting to fundamental ethical considerations is required. Because safety of the child is paramount (beneficence and nonmaleficence principles), guardian and/or child opposition to psychiatric intervention is disregarded in the event of imminent danger. When, as illustrated above, parents consent and children dissent, these same principles are used as a basis for reasoning, but because of developmental dissimilarities they will be applied differently (the justice principle).
Thus, in the case of the 7-year-old, the exercise of parental will is sufficient to result in his attendance. By contrast, in the case of the adolescent, it is far better for the CAP to suggest an initial visit alone by the child’s parent-both to discuss the presenting complaint and its context and to explore legitimate approaches that may help turn the 16-year-old from opposition to direct discussion with the psychiatrist to agreement. As well, the parent’s capacity to create a firm structure for the child should undoubtedly receive attention.
Confidentiality is a frequent concern in work with children, because guardians (be they individuals or agencies) commonly initiate care for the youngsters. The guardians legitimately expect feedback from the child psychiatrist if only to attempt improved care for the children.
Case 1: An 8-year-old girl fears punishment for having informed the psychiatrist about her “sad mommy,” who is upset over her live-in boyfriend’s involvements with other women.
Case 2: A 16-year-old boy mentions “doing XTC” several months before, liking the experience, and giving “a couple of pills” to several of his friends at school, and reminds the psychiatrist of the confidential-ity agreement covering this verbal exchange.
Case 3: A 13-year-old requests that the psychiatrist supply the patient with condoms, without informing the parents.9
Case 4: An agency-based CAP is told by a school-aged child of a recent aggressive physical attack, perpetrated by her chronically psychotic but now calm parent, in the family home. The information implicitly raises questions about alerting authorities to concerns about possible abuse or neglect. However, both the child patient and the psychiatrist’s superiors advise, for sound reasons, against doing so.10
Case 5: A 15-year-old agitatedly reports intrigue and disgust following spending hours with his male peers viewing and talking with anonymous, partially naked girls on Chatroulette (a recent addition to the Internet global repertoire).11 Simultaneously, he strongly asserts that he does not wish his family to know.
Case 6: A 17-year-old plans to throw a party at her house at which she will serve alcohol, despite peer gossip about possible police foreknowledge and anticipated arrests. She does not intend, however, to apprise her parents, who will be away.
Confidentiality, a legal and clinical expression derived primarily from the ethical autonomy principle, is based on the belief that the privacy of communications of patient to practitioner is sacrosanct. This sense of privacy is intended to encourage the patient to feel comfortable in “baring all,” in effect discouraging patients’ inclinations to withhold information, thus effectively giving the physi-cian a comprehensive foundation on which to base treatment interventions. With the exception of safety considerations and forensically based evaluations, this legal precept should ordinarily be strictly adhered to in work with adults. With children, however, developmental considerations again must be considered paramount. Therefore, for example, while all children in theory have a right to confidentiality, the young preschool or school-aged child-who ordinarily is desirous of sharing information with her parent-would probably be confused and possibly alarmed if informed that verbal exchanges during treatment would not be shared with her mother.
Particular CAP discomfort with the impact of developmental issues, however, comes most commonly to the fore in work with adolescents. By this stage of maturation, cognitive awareness has grown considerably, as has the importance of the peer group. A second individuation process has been conceived as occurring, during which adolescents are to be encouraged toward greater self-reliance and autonomy while separating from their parents/guardians.12 The neurological basis for more adult-like impulse control and delay of gratification has some years to go, however.13 Thus, the clinician often finds himself dealing with complications stemming from variants of 3 prominent factors affecting adolescent development, ie, sex, drugs, and rock and roll (this last category ranging beyond music to embrace roller-coaster notions of possibility, excitement, risk, and flirtations with potential self-injury).
The CAP must consider numerous factors. Foremost are safety issues. If true danger to life is imminent, confidentiality is violated. But if the dangers have seemingly passed (eg, Case 4), or if the potential for self-harm is not imminent (eg, Case 2), grounds for confidentiality violation appear more flimsy. The CAP should also consider therapist countertransference: would the clinician handle any of the above scenarios differently if the sex or the age of the protagonists were changed? In theory, such changes should not make a difference, but the unconscious can well play a role in clinical decisions if its influence is not deliberately acknowledged by the CAP.
Adoption from the outset of a family-based (in contrast with an individually based) approach to care is a useful way to manage such ethical conflicts. By dealing with all the protagonists from the beginning, one can outline the ground rules for subsequent care-emphasizing the degree of respect offered to private communications, how and when the latter might be violated, or when protagonists would be encouraged to share information. Confidentiality as a concept is thus addressed early on, while greater emphasis is placed on the development of trust between the CAP, patients, and their family members, and on the explicit assertion that the CAP will use tact and wisdom in negotiating sticky intrafamilial dynamics and their imbedded barriers to communications.
Of equal import is the use of a risk to benefit analysis to resolve ethical conflicts, employed here regarding the privacy of verbal exchanges. Does the revelation of confidential information provide such advantage as to supercede the risks to continued treatment? Or is the risk of violating private communications too disruptive to continuation of care, thus rendering the benefits moot or relatively miniscule? Such complicated matters customarily exist in gray areas, not in clearly discernible blacks and whites. Usually, therefore, the CAP has time to explore further, ask more questions, and temporize, while encouraging communications between parties and simultaneously impeding critical, angry, or punishing feedback. The above-described family approach, which in fact might mean only occasional child-parent joint meetings with the CAP, greatly helps prevent the turning of confidentiality conflicts into crises.
Ethical dilemmas crop up repeatedly in work with children and adolescents. In response, the American Academy of Child and Adolescent Psychiatry recently adopted an entirely new and substantially revised Code of Ethics that reflects both enduring issues and external and internal changes that have affected the field over the past 30 years.14 The items discussed above (ie, consent and confidentiality, respectively) are merely 2 examples of issues among a larger array of possible topics worthy of discussion and examination. Diagnoses, boundaries, research, pharmacological and psychotherapeutic treatments, genomics, and prodromic interventions all have the potential to raise serious inquiries within the field. Whether one is a clinician, educator, researcher, and/or administrator, CAPs of all stripes will face ethical conundrums in these areas, and will be better professionals for having wrestled with them.
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