Confidentiality And The Treatment Of Minors, Ethical, Legal and Clinical Issues

 

Case example 1: A couple brought their 12-year-oldson to a psychologist for treatment ofoppositional defiant behavior. After the third treatmentsession, the parents telephoned the psychologist for feedback. Thepsychologist provided only general information about the treatment,but refused to answer many of the parents’ questions, citingthe importance of therapist/patient trust. Indignant, the parentsrefused to bring their son for further treatment and threatened a lawsuit. The information was eventually provided, but treatment wasterminated unsuccessfully prior to achievement of their goals.

Case example 2: After several treatment sessions with a 15-year-old female with a history of conduct problems at school andhome, the treating psychologist was informed by this patient thatshe had begun experimenting with illicit drugs. Alarmed, thepsychologist telephoned her parents as soon as the session ended.He informed them of her reported drug use and the parents thenconfronted their child. Over the next several sessions, it becameevident that the treatment relationship between the teenager and thepsychologist had been damaged. The patient was sullen, withdrawn,and uncooperative. Shortly thereafter, she began refusingto meet with the psychologist and treatment ended prematurely andunsuccessfully.

The law in most states, including Maryland, is unclear aboutthe specific parameters of confidentiality regarding psychotherapywith children and teenagers (Pope, 1990). State interpretations ofcase law differs, bearing heavily upon the applicability of legislationregarding distinct but related issues such as privilege, confidentiality,access to information under various circumstances, andmandatory versus discretionary reporting requirements.

Some states have adopted inconsistent policies in whichminors may consent to treatment while parents maintain rights toaccess their children’s treatment records. A number of states makeno reference at all to the confusing and conflicting interests of aminor wanting confidentiality while the parents are paying the feesand want access (Gustafson & McNamara, 1987).

Due to the ambiguities surrounding practice procedures andconfidentiality, psychologists have found themselves in violationof ethical standards at alarming rates. In a national study ofpsychologists, 61.9% reported unintentionally violating confidentiality(Pope, 1990). He further reports the results of a 5-year studyby the APA Ethics Committee of complaints against psychologists,”failure to preserve appropriate confidentiality …” was the fourthmost frequent basis of disciplinary action. The most frequentconfidentiality errors involve failure to obtain written consent torelease specific patient information (p. 40).

The written consent recommendation is just that, a recommendationnot a law, which further confuses the issue of how toorchestrate degrees and types of confidentiality with minors intreatment. Gustafson and McNamara (1987) recommend developinga specific treatment contract during an initial session which isspecifically scheduled for the purpose of determining the degree ofconfidentiality necessary. The contract is unique to each child andfamily and details the conditions and limits of confidentiality in thatchild’s case. If this agreement is contested however, it is unclear, asa rule, whether courts are likely to decide in favor of the parents oruphold the professional contract developed by the psychologistand family.

Maryland law addresses specific circumstances in whichminors have the right to consent to medical treatment and the rightto choose practitioners independently, including a minor who ismarried or is a parent, emergency treatment in which “…the life orhealth of the minor would be affected adversely by delayingtreatment,” treatment for drug/alcohol abuse, sexually transmitteddisease, pregnancy and contraception (Health General Article,Annotated code of MD 20-102, p. 282). Currently, this statute islimited to health care provided by physicians. Freedom from liabilityfor treating a minor because the minor did not have the capacity toconsent is limited to physicians and those they supervise. Clearly,legislative change, which includes psychologists under this statutemay be appropriate.

The American Psychiatric Association’s Task Force onConfidentiality of Children’s and Adolescent’s Clinical Recordsrecommended in the “Model Law of Confidentiality” that the age atwhich minors may give consent to release confidential informationis 12-years or over (ApA, 1979). However, case law is sparse andinterpretations are vague and non-specific with regard to the degreeto which “right to consent” implies confidentiality in psychotherapy.In some cases, courts have extended all privilege andconfidentiality to minors as young as 14 based upon assessed levelof maturity, formal cognitive development or capacity to fullycomprehend the scope and nature of consent and privilege, and therelevance of confidentiality based upon the broader context ofpresenting problems (Powell, 1985; Gustafson, McNamara, & Jensen,1994). In Weinapple and Perr (1981), a New Jersey court extendedall rights to a 14-year-old in spite of parental wishes to use the minor’smental health records as part of court evidence. On the other hand,the need for greater safeguard of minors’ confidentiality was impliedin Nagle v. Hooks (1982) when the court in Maryland ordered thatan attorney should be appointed as a guardian of the child forpurposes of asserting or waiving the child’s privilege when it wasdetermined that the parents acting in such capacity would be aconflict of interest.

Experts strongly argue both sides of the debate. Taylor andAdelman (1989) advocate parental access to treatment informationon the grounds that confidentiality with minors “colludes with atendency for some professionals to lose sight of the fact that failureto share germane information can seriously hamper an intervener’sefforts to help a youngster,” (p. 79). They assert that reframing thedilemma about confidentiality as an empowerment issue teaches minors to share information when appropriate and minimizes negativeconsequences that may result from divulging sensitive material.Opponents to this view contend that what is in the child’s bestinterest should be the determining factor and that the therapist’sduty of confidentiality is not to the parents but to the child, becausethe child is the client (Myers, 1982). McGuire (1974) assessed theviews of community mental health providers and found that “themajority of mental health professionals” supported the position thatchildren and adolescents should be extended the rights of confidentialityafforded adults.

However, Wager (1981) surveyed elementary school counselorsand found that more than half felt parents should be fullyinformed, while high school counselors, recognizing different cognitive,emotional, or social maturity levels of teenagers, were morelikely to prefer maintaining the same degree of confidentiality withhigh school students as with adults.

While most psychologists adhere to the general legal parameterswhen treating minors, recognizing that the parents hold theprivilege and are thus entitled to at least general information andmaterial of a serious or dangerous nature, the ethical and philosophicalperspectives that guide the more subtle practice proceduresaround detailed and non-dangerous information are more varied.Gustafson and McNamara (1987) suggest guidelines based upon thescientific research of cognitive development in which they assertthat the primary reason for disallowing the same rights or responsibilitiesas adults is that minors are considered to be too immature toact in their own best interests. However, numerous studies (e.g.,Adelman, et al, 1985; Belter & Grisso, 1984; Kaser-Boyd et al, 1985;Koocher, 1983) suggest that adolescents by the age of 14 or 15 areas capable as adults of making well-informed treatment decisions.They indicate that without violating laws, the degree of confidentialityaccorded a minor, if based on reasonable and sound legal andpsychological data, should take into account not only the child’sage, but also the developmental age or cognitive capacity of the child,the cognitive understanding of the concept of confidentiality and itslimits, the needs and desires of the child, the concerns and custodialrights of the parents, the particular presenting problems and therelevant state statutes, to include reporting requirements whichmandate breaching confidentiality under specific circumstances.The parents and children should then be involved in an activeprocess of individualized pretreatment confidentiality agreementdevelopment, and the therapist should explore with the parents theirlevel of comfort with the limits of confidentiality so as not toundermine the agreed upon contract.

Maintaining confidentiality has been a cornerstone to psychologists’role in the therapeutic relationship. Most concur that thisapplies to the treatment of adolescents as well. As Gustafson andMcNamara (1987) state, “if the adolescent is capable of understandingthe importance and the limits of confidentiality, then the clinicianis justified in ensuring confidentiality in the therapeutic relationship.The law is unclear…there may be a conflict between what is legallyright and what is therapeutically appropriate” (p. 507). It is ourresponsibility to balance ethical and legal concerns while working onbehalf of our clients’ best interests.

References

Adelman, H.S., Lusk, R., Alvarez, V., & Acosta, K. (1985).Competence of minors to understand, evaluate and communicateabout their psychoeducational problems. ProfessionalPsychology: Research and Practice, 16, 426-434.

American Psychiatric Association (1979). Task force on confidentiality of children’s and adolescents’ clinical records. American Journal of Psychiatry, 136, 138-144.

Belter, R., & Grisso, T. (1984). Children’s recognition of rightsviolations in counseling. Professional Psychology: Researchand Practice, 52, 899-910.

Grisso, T. & Vierling, L. (1978). Minors consent to treatment: Adevelopmental perspective. Professional Psychology, 9, 412-427.

Gustafson, K. & McNamara, R. (1987). Confidentiality with minorclients: issues and guidelines for therapists. ProfessionalPsychology: Research and Practice, 18, (5), 503-508.

Gustafson, K., McNamara, R., & Jensen, J. (1994). Parents’ informedconsent decisions regarding psychotherapy for their children: Considerationof therapeutic risks and benefits. Professional Psychology:Research and Practice, 25, (1), 16-22.

Health General Article Annotated Code of MD 20-101, p. 282.

Kaser-Boyd, N., Adelman, H., & Taylor, L. (1985). Minors’ ability to identify risks and benefits of therapy. Professional Psychology:Research and Practice, 16, 411-417.

Koocher, G. (1983). Competence to consent: Psychotherapy. In G.B.Melton, G. P. Koocher & M.J. Saks (Eds.), Children’s competence to consent (pp. 111-128). New York: Plenum.

McGuire, J. (1974). Confidentiality and the child in psychotherapy.Professional Psychology, 5, 374-379.

Myers, J. (1982). Legal issues surrounding psychotherapy with minorclients. Clinical Social Work Journal, 10, 303-314.

Nagle v. Hooks. (May, 1983), 296 Md, 123-128.

Pope, K., (1990). A practitioner’s guide to confidentiality and privilege: 20 legal, ethical, and clinical pitfalls. The Independent Practitioner, 10, 40-44.

Powell, C. (1985). Ethical principles and issues of competence incounseling adolescents. The Counseling Psychologist, 12, (5), 57-68.

Taylor, L. & Adelman, H. (1989). Reframing the confidentialitydilemma to work in children’s best interests. Professional Psychology: Research and Practice, 20, 79-83.

Wagner, C. (1981). Confidentiality and the school counselor. Personnel and Guidance Journal, 59, 305-310.

Weinapple, M. & Perr, I. (1981). The right of a minor toconfidentiality: An aftermath of Bartley vs. Kremens. Bulletin of the American Academy of Psychiatry and the Law, 9, 247-254.

 
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