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Replacing “Who Is the Client?” With a Different Ethical Question
Mary Alice Fisher Center for Ethical Practice, Inc.
The familiar question, “Who is the client?” has become a distraction from more important ethical questions. By requiring a singular answer, the question obscures the fact that psychologists have ethical obligations toward every party in a case, no matter how many or how named. Making the question plural is not a sufficient solution, because identifying the client(s) should not be treated as an end in itself; it is simply a means of clarifying the nature of the relationship(s) and understanding the accompanying ethical obligations. After exploring the underlying implications for informed consent, confidentiality, and other ethical duties, the author suggests that psychologists adopt an alternative ethical question: “What are my ethical responsibilities to each of the parties in this case?” Finally, a case example illustrates the fact that the old question has several different meanings (and therefore different answers), depending upon whether it is asked as an ethical, clinical, legal, or reimbursement question. The proposed new question avoids such confusion because it is easily identifiable as an ethical question and its meaning is clear.
Keywords: ethics, informed consent, clients, obligations, ethical decision making
“Who is the client?” The question invites a singular answer. Yet in the very circumstances when the question is most relevant, the need for clarification arises precisely because there may be more than one client.
The question actually appears in this form only once in the American Psychological Association (APA; 2002) Ethics Code; Standard 3.07 (“Third-Party Requests for Services”) poses the question in the singular. Two other ethical standards (3.11, “Psy- chological Services Delivered to or Through Organizations,” and 10.02, “Therapy Involving Couples or Families”) imply a plural answer. But the question, “Who is the client?” has become so familiar that psychologists tend to ask it across a range of cases.
The problem is that the question, “Who is the client?” encour- ages psychologists to name one person or entity as the client, even though they may have relationships with several different clients, perhaps several different types of clients, in a single case.
The notion of a singular client has gotten us into a real bind. It has become an impediment to thinking in a careful and nuanced manner about our ethical obligations, which even in our binary approach extend beyond “the” client. (S. Behnke, personal communication, August 3, 2007)
In other words, the question obscures the fact that psychologists have ethical obligations to all parties in every case, regardless of the number or the nature of the relationships.
Nevertheless, some casebooks that explicate the APA Ethics Code recommend that psychologists identify a single person or entity as the client. For example, regarding Standard 3.07, Nagy (2005) phrases the question as “Who, exactly, will be the client or recipient of your services?” (p. 84), suggesting that there is only one. C. B. Fisher (2003) similarly states that this ethical standard requires “identifying whether the third party or the individual receiving the services is the client” (p. 73), again suggesting that psychologists should specify only one individual or entity as the client.
This single-client recommendation sometimes appears even when the ethical standard itself implies the plural. For example, in therapy cases involving multiple clients who are related to each other, Standard 10.02 (APA, 2002) requires psychologists to ask, “Which of the individuals are patients or clients?” Nagy (2005) nevertheless suggests that psychologists must make clear “which person is actually your client or patient” (p. 297), implying a single answer. C. B. Fisher (2003) first uses a plural subject with a singular verb: “Psychologists must identify and explain which members of the couple or family is [sic] the primary client/patient” (p. 219). But the singular is emphasized by the suggestion that psychologists may identify as the client or patient either the multiperson unit or a single individual; there is no mention of the possibility that several individuals might be considered clients.
In contrast, Knapp and VandeCreek (2003), when discussing therapy with couples and families, do not mention identifying the client(s). Instead, their first recommendation is that psy- chologists “clarify their roles and their relationships with all parties” (p. 148). Similarly, Pope and Vasquez (2007) focus not on client identification but on ensuring that “informed consent and informed refusal is provided for each person” (p. 146). When Koocher and Keith-Spiegel (2008) discuss the question, “Who is the client?” in the context of challenging work settings, they provide a broad answer:
MARY ALICE FISHER received her PhD from the University of Virginia Curry Programs in Clinical and School Psychology and is currently a member of the adjunct faculty there. She also maintains an independent practice in Charlottesville, Virginia. She is founding director of the Center for Ethical Practice, Inc., in Charlottesville, through which she provides ethics seminars, continuing education workshops, consultation services, and other resources for mental health professionals. CORRESPONDENCE CONCERNING THIS ARTICLE should be addressed to Mary Alice Fisher, The Center for Ethical Practice, Inc., 934 East Jefferson Street, Charlottesville, VA 22902. E-mail: [email protected]
Professional Psychology: Research and Practice © 2009 American Psychological Association 2009, Vol. 40, No. 1, 1–7 0735-7028/09/$12.00 DOI: 10.1037/a0014011
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The professional has an obligation to clarify the nature of the ethical duties due each party, to inform all concerned about the ethical constraints, if any, and to take any steps necessary to ensure appro- priate respect for the rights of the person at the bottom of the client hierarchy. (p. 486)
Such clarification is considered so ethically important that the APA Ethics Code references the initial informed-consent conver- sation in a dozen separate ethical standards (M. A. Fisher, 2007). The content of this conversation necessarily varies, depending on the context and the nature of the prospective relationship; but it would be a mistake to presume that the psychologist needs to provide clarifying information to (or obtain consent from) only one party (i.e., a single client), whether about the limits of confiden- tiality or about other important aspects of the psychologist’s pol- icies. (See Table 1.)
Third-Party Requests
In cases involving third-party requests for services, it can be very misleading to name only one party as the client. These cases often have at least two different types of client: the individual or entity contracting for services and the individual receiving the services. For example, a forensic psychologist may have both a contracted relationship with a court to provide a court-ordered assessment and a clinical relationship with one or more individuals who receive the contracted services. Haas and Malouf (2005), in discussing the potential loyalty conflict in such cases, suggest that “it might reasonably be argued that the ‘patient’ is the court, at least as much as is the individual sitting in the consulting room” (p. 64). Describing the court as the “patient” in a forensic case seems very awkward, but it would certainly be appropriate to describe the court as a client—in this case, the contracted client.
In such a case, however, forensic psychologists are being trained to identify the court as the client. This has not always been the case. In the current forensic guidelines (APA & American Board of Forensic Psychologists, 1991), the word client is used only to refer to the examinee. However, in the proposed new guidelines for forensic psychologists (APA & American Board of Forensic Psychologists, 2008), the definition of client is limited to mean only “the attorney, law firm, court, agency, entity, party, or other person who has retained, and who has a contractual relationship with, the forensic practitioner to provide services” (p. 20). Throughout the document, the word client carries only this mean-
ing; the person receiving the assessment services is described instead as the “examinee” (p. 20).
But ethically speaking, the person receiving the contracted ser- vices is certainly also a client in such cases, holding the rights (and deserving the protections) of any client receiving assessment ser- vices. Thus, although the confidentiality of the information obtained from forensic examinees may be limited (or even removed) by the third-party contract or court order, this does not mean the examinees have no rights at all about confidentiality. On the contrary, they have the right to be informed in advance about the potential limits (or complete absence) of confidentiality, about the foreseeable uses of the information that will be obtained from the assessment, and about their right to consent or refuse to participate. The ethical obligation to conduct this conversation with all assessment clients arises from Standards 3.10c, “Informed Consent”; 4.02, “Discussing the Limits of Confidentiality”; and 9.03, “Informed Consent to Assessments” (APA, 2002). In the context of forensic cases, this ethical duty becomes doubly impor- tant, because the examinee’s legal and civil rights can be left unprotected if this information is not provided.
It thus seems most accurate to think of these two entities—the court and the examinee—as two different types or levels of client. All clients have rights. In this example, the court may have established (through its contract or in its order) the right to receive the results of a timely evaluation in the form of an accurate report (or for court-ordered therapy, a description of services rendered, a treatment summary or compliance report, etc.). The person receiv- ing the contracted assessment services has the right to receive a competent evaluation, as well as the right to be informed in advance about the psychologist’s prior relationship with the court and any limits of confidentiality that will be imposed by that contract. Regardless of whether a court or some other third party contracts for the services, naming only one entity as the client obscures the fact that the psychologist has important ethical obli- gations to both.
Koocher (2007) concurs that “both the entity requesting the service and the person undergoing evaluation hold a kind of client status in such cases” (p. 380). He includes such client- identification issues among the ethical challenges facing 21st- century psychologists; but that does not mean this issue is new. It was addressed as long ago as 1980, when Monahan made Who Is the Client? the title of a classic monograph about dilemmas faced by psychologists in the criminal justice system. “What psychology
Table 1 Ethical Responsibilities in Clarifying Client Relationships During Initial Informed Consent Interview
Ethical standard
Ethical mandate: Identify client(s) implies:
Ethical mandate: Clarify nature of all relationship(s); nature of services; role(s); fees; involvement of third parties; intended recipients of services; probable uses
of information; limits of confidentiality, etc.Singular answer Plural answer
3.07 (Third-party requests for services) � � 3.11 (Services to/through organizations) � � 9.03 (Informed consent to assessments) �
10.01 (Informed consent to therapy) � 10.02 (Therapy with couples or families) � �
Note. Ethical standards are taken from American Psychological Association (2002).
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appears to lack at the present time is an effective way to differ- entiate obligations owed to organizational as opposed to individual clients” (Monahan, 1980, p. 2). Noting the potential conflict be- tween the interests of the referring entity and the interests of the individual receiving services, Monahan’s (1980) first recommen- dation was that psychologists inform all parties of the circum- stances that might affect confidentiality. The implications of this recommendation would apply in any third-party referral, whether the third party is a court, an agency or organization, an attorney, or another individual. (See also Services to or Through Organiza- tions, below.)
Cases Involving Family Members
Matters become more complicated if the third party requesting the services is a family member of the person receiving the services. For example, psychologists who provide individual ther- apy to children usually do so at the request of some third party, most often the child’s parents. If we think of this only as a third-party request, the “single client” rule in Standard 3.07 (APA, 2002) would seem to apply. But although it is appropriate to identify the child as the therapy client, it is important to remember that the psychologist incurs ethical responsibilities toward the parents as well. When he or she meets with them, they are not therapy clients; so what are they? The APA Insurance Trust (APAIT; 2006) suggests that they be considered collaterals to the child’s therapy. If parents are seen separately, they might be called parent consultation clients, in addition to being considered third- party referral agents and/or collaterals. But what if child and parents are sometimes seen together? If this makes everyone family therapy clients, will Standard 10.02 apply? If so, that standard suggests the possibility of plural clients. But a family- systems therapist may argue that often the family unit should be considered the client, even if the family members are seen sepa- rately. What is obscured by this confusing client-identification process is the fact that psychologists have ethical responsibilities to all these family members, regardless of what they are called or how the case is structured.
Cases involving related individuals are also complicated when clinical services to the family are requested by an agency or ordered by a court. As in the third-party referrals described above, what is ethically important is that each party has a right to receive, in advance, an explanation of the psychologist’s role; a clarifica- tion of the nature of the relationship; an explanation of rights; a discussion of probable uses of the services provided and the information obtained; and an explanation of limits of confidenti- ality, including how each party’s confidentiality may be affected by the third party’s involvement (see Standards 3.07 and 10.02; APA, 2002).
In all cases involving family members, Pope and Vasquez (2007) stress the importance of providing everyone with clear answers to such clinically important questions as, “Will the ther- apist hold confidential from one family member material disclosed by another family member?” (p. 146). Knapp and VandeCreek (2006) similarly note the importance of discussing with everyone “the role of secrets” and the “rules for confidentiality with minors” (p. 105). Therapists disagree about such matters, so their confi- dentiality rules in couple and family cases can vary greatly; this means that each psychologist is the only source of accurate infor-
mation about exactly what the policies will be. This poses no ethical problem as long as psychologists “clarify their policy at the outset of therapy” (Knapp & VandeCreek, 2006, p. 117). However, failure to provide adequate explanations to all parties in advance is one of the common confidentiality pitfalls in therapies with cou- ples and families (Weeks, Odell, & Methven, 2005).
This initial clarification is especially important in cases where the relationship will not be the same with all parties. Clinically speaking, all the members of the family may be therapy clients; but ethically speaking, this does not necessarily mean that they all have exactly the same rights. For example, a minor’s confidenti- ality rights are not usually the same as those of the parent(s). Some difference in rights will likely arise voluntarily (as when psychol- ogists have differential disclosure policies to protect the safety of minors or impaired family members), but other differences in rights can be imposed by law.
Legally speaking, minors’ rights vary from state to state. Some states allow minors to seek outpatient mental health treatment without parental consent; many states allow parents to have access to the treatment records of their minor child; and some states allow both. This means that the psychologist must be very familiar not only with the minor’s legal rights, but also with the parents’ legal rights, whether or not the parents are to be considered therapy clients. Further complicating matters is the fact that the federal Health Insurance Portability and Accountability Act (HIPAA) regulations interact in complicated ways with these state laws, leading to differing privacy rights for minors across state jurisdic- tions. The APA Legal and Regulatory Affairs staff (APA, 2005) has provided a helpful discussion of these legal complications.
Regardless of the legal specifics, the initial informed-consent discussion can require significant preparation in any case involv- ing minors. In advance, psychologists must determine their own preferences about what information they will voluntarily disclose to parents, and when; must learn how their policies will be affected by state laws, including abuse reporting laws; must clarify the HIPAA implications (if applicable); then must develop very clear policies consistent with those legal constraints. Only with such planning will the psychologist be prepared to fulfill the ethical obligation to describe in advance, to both the parent(s) and the minor(s), exactly when confidentiality will apply and when infor- mation will be disclosed (M. A. Fisher, 2002).
For documenting this conversation in adolescent therapy cases, Kraft (2005) has provided a sample informed-consent form to be signed by both the adolescent and the parents. As with all such forms, however, it must be adapted to match the policies in the setting; details will differ from therapist to therapist, depending on the combination of legally imposed and voluntarily imposed ex- ceptions to confidentiality. With younger minors or with other family members legally incapable of giving informed consent, psychologists are ethically responsible for providing an age- appropriate explanation, seeking their assent to participate, con- sidering their preferences and best interests, and obtaining formal consent from the parent(s) or guardian(s). (See Standard 3.10, “Informed Consent”; APA, 2002.)
Clearly, settling for a single answer to “Who is the client?” in such cases would not only have ethical and legal ramifications, but could also create unnecessary clinical complications. Family mem- bers who were not adequately informed in advance will have every reason to feel betrayed if information about them is later disclosed
3WHO IS THE CLIENT
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unexpectedly to other family members or to third parties. Failing to address the important issues with all parties; making incompat- ible promises to different family members; and/or failing to en- courage questions and provide honest answers—such ethical mis- steps at the beginning can deprive everyone of the opportunity to make an informed decision about whether to participate.
Services to or Through Organizations
In cases involving organizations, the APA Ethics Code suggests a plural answer to the “Who is the client?” question. But Standard 3.11 (“Psychological Services Delivered to or Through Organiza- tions”) is somewhat confusing in two respects. First, it applies to two very different types of circumstances (e.g., a psychologist providing consultation services to an organization and a psychol- ogist providing services through an organization that employs or contracts with him/her). Second, the wording makes it difficult to be sure who is considered a client in either of these circumstances: “Psychologists delivering services to or through organizations provide information beforehand to clients and when appropriate those directly affected by the services about . . . which of the individuals are clients” (APA, 2002, p. 1066). This standard leaves some important questions unanswered: First, are the clients of the first phrase the same as those of the second? If not, what is the relationship between the two? Second, are “those directly affected by the services” not also considered clients? If not, what are they? Will the answers vary depending on the circumstance or the psychologist’s role?
Psychologists who provide services to organizations may en- counter complications similar to those in third-party referral cases. For example, a psychologist might have a contract with a corpo- ration, specifying a plan for providing leadership consultation to the CEO, in addition to case consultation to several of his man- agers who have problematic relationships with their supervisees. The psychologist might meet with the CEO, with the managers, with their supervisees, and perhaps with other employees. Asking “Who is the client?” may lead to the simple answer: “The corpo- ration is my client, because it issued the contract and pays my fee.” But this answer provides the psychologist with no guidance about specific ethical responsibilities in the complex relationships that will be developed with individuals within this corporate system. What are their individual rights? How do they differ? What will happen to the information confided to the psychologist by the CEO? By the managers? By their supervised employees? It prob- ably will not be appropriate for the psychologist to promise the same level of confidentiality in each of these relationships; so the limits of the confidentiality will need to be defined in advance, explained at the initial informed-consent interview with the CEO, and made clear to each individual at each level of the consultation process. None of this will be adequately clarified in the mind of the consulting psychologist who relies on the “Who is the client?” question and settles for its single answer.
In organizational consulting relationships, a singular answer is usually presumed (Kramer, Kleindorfer, & Colarelli, 1992), even though “there are no specific guidelines for determining who the client is or should be in complex consulting situations” (Kramer, Kleindorfer, & Colarelli-Beatty, 1994, p. 12). As a result, psychol- ogists who consult to organizations or agencies give very differing answers to the “Who is the client?” question when faced with
sample case scenarios. The wide-ranging rationales for their choice of “most important client” include “who holds organizational authority, who is responsible to solve the problem, who will be impacted by the solution, and who is the initial contact person” (Kramer et al., 1994, p. 11).
Psychologists who provide services through organizations may encounter conflicting loyalties when the interests of the employing (or contracting) organization conflict with the interests of the party receiving the services. In this regard, no circumstances are more complex than those faced by psychologists who work within the school setting, with differing ethical responsibilities to their em- ployer, to the students who receive their services, to the teachers who elicit their consultation, and to staff colleagues who are members of their team. No single-answer question would ade- quately clarify the potential conflicts of interest or the complicated confidentiality rules that must be established and explained among those relationships.
Less discussed are the potentially conflicting loyalties psychol- ogists face when they sign legally binding managed care contracts or other reimbursement agreements, under which they become contracted providers for third-party-payer organizations. Legally speaking, this may not be considered the same as providing ser- vices through those organizations; but ethically speaking, similar issues are involved. Such contracts bind the psychologist to oper- ate within the organization’s guidelines, thus creating the ethical requirement that they inform persons receiving services about the implications of the prior organizational relationship. For providers of clinical services, this ethical duty might arise from several different APA ethical standards. Under Standard 3.06 (“Conflict of Interest”), psychologists must consider whether their contract with the reimbursement organization would create a potential conflict of interest (e.g., if it offers an incentive for the psychologist to limit services). Under Standard 3.11 (“Psychological Services Delivered to or Through Organizations”), therapy clients have the right to be informed about “the relationship the psychologist will have with each person and the organization” (APA, 2002, p. 1066). And under Standard 4.05 (“Disclosures”), clients have the right to give (or to refuse) consent for information to be disclosed to the contracted third party for obtaining reimbursement.
When asked as a reimbursement question, “Who is the client?” ordinarily requires a singular answer to meet third-party payer requirements; and that answer may be different from the answer obtained when the question is asked from a clinical, legal, or ethical perspective. (See case example, below.) Ethically, what is important to remember is that for the person who is to be billed as the client, the psychologist is the only possible source of informa- tion about what will be sent to the third-party payer. For disclo- sures to reimbursement organizations, the informed consent pro- cess therefore requires (a) designating the person under whose name the services will be billed; (b) informing that person about the nature of the information to be disclosed and the potential implications of disclosing it; and then (c) seeking explicit consent to make the disclosure. Once fully informed, the person can make a voluntary decision about whether to give consent for the planned disclosure or whether instead to give informed refusal. It is im- possible at intake to predict the content of future disclosures, but the client’s rights can be protected by renewing the informed consent discussion at the time of the disclosure (M. A. Fisher, 2008). In fact, Acuff et al. (1999) suggested that it should be the
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“usual rule of thumb” to discuss each treatment plan at the time of transmission with the client in whose name it is being sent (p. 570).
New Ethical Question?
Obviously, to ask, “Who is the client?” is not helpful enough in these case examples. In fact, seeking a singular answer can create more problems than it solves. But making the question plural does not solve the problem. Whether singular or plural, the question obscures the fact that identifying the client(s) is only a beginning, not an end in itself. It is simply a means to the important end of clarifying the psychologist’s ethical responsibilities.
If we stop asking “Who is the client?” what should we ask instead? Regardless of the type of case or the number of relation- ships it involves, the question psychologists should ask might be “Exactly what are my ethical responsibilities to each of the parties in this case?”
This new question reminds psychologists that they are respon- sible for protecting the rights of everyone involved—those who request services; those who receive services; those who participate as collaterals in the services provided to others; “outsiders” who provide information; others to whom information is disclosed, etc. This is consistent with the ethical duty to clarify the nature of relationships, regardless of what they are called; to conduct an informed-consent conversation that describes the psychologist’s role; and to explain the resulting limitations on confidentiality as they will apply to each party (see Table 1).
This new question is consistent with the fact that psychologists have an ethical obligation to clarify such things with all involved parties, not just with the party requesting or receiving the psycho- logical services. With third-party referrals, it is a reminder that psychologists have an ethical obligation to provide in advance (preferably in a written contract) clarification of the nature of all the proposed relationships, as well as a description of what (if any) information will be provided to the referring third party about the services received. Similarly, in cases involving collaterals (whether family members or others), it is a reminder of the obligation to inform them that their relationship with the psychol- ogist (and their rights) will not be the same as those of the person(s) receiving the therapy or assessment (APAIT, 2006). In any type of case, this new question would help psychologists prepare to discuss with each party exactly how confidentiality will apply (or not apply) in the relationship, making it possible to obtain truly informed consent for their participation (M. A. Fisher, 2008).
This new question does not imply that psychologists should abandon the term client altogether. It does require, however, that psychologists identify the type of client as a means of understand- ing their differential ethical responsibilities. This becomes espe- cially important for psychologists who provide therapy services. In its section on therapy relationships, the APA Ethics Code (2002) uses the terms client and patient interchangeably; but regardless of what they are to be called, persons in therapy relationships are deemed more vulnerable and are therefore given special rights and safeguards. Thus, psychologists in therapy relationships have eth- ical duties beyond those described above, including responsibility for explaining potential risks (Standard 10.01, “Informed Consent to Therapy”) and for dealing ethically with issues of interruption or termination of the relationship (Standards 10.09, “Interruption of
Therapy,” and 10.10, “Terminating Therapy”). Furthermore, be- yond the broadly applicable ethical requirement to avoid multiple relationships that might lead to exploitation or harm (Standard 3.05, “Multiple Relationships”), in therapy relationships psychol- ogists have four additional ethical standards that bar sexual rela- tionships (Standards 10.05, “Sexual Intimacies With Current Ther- apy Clients/Patients”; 10.06, “Sexual Intimacies With Relatives or Significant Others of Current Therapy Clients/Patients”; 10.07, “Therapy With Former Sexual Partners”; and 10.08, “Sexual Inti- macies With Former Therapy Clients/Patients”). These ethical duties make it important for psychologists to clarify for themselves the nature of their relationships and the type of services to be provided, in order to differentiate therapy clients/patients from other types of clients.
“What are my ethical responsibilities to each of the parties involved?” The answer will differ depending on whether the relationship is with a therapy client/patient, an assessment client, a collateral participant, a supervisee, a consultee, a contracted party, a research subject, or some other type of client. Whereas the old question does not help psychologists make ethical distinctions among these potentially overlapping types of relationships, the new question requires them to define the nature of each relation- ship in order to know which ethical duties will apply.
“What are my ethical responsibilities to each of the parties involved?” This new question is longer. It’s not as catchy. It has no single-word answer. It requires us to consider the full range of our ethical obligations toward everyone involved. But isn’t that exactly the point? As suggested years ago,
When psychologists do try seriously to articulate who their client is—where their loyalties are to be given . . . they sometimes appear to be under the impression that they are constrained to a multiple-choice answer . . . . It appears to us that there is no need for psychologists to impale themselves on the horns of this dilemma, because “Who is the client?” is not a multiple-choice question. It requires an essay answer. (Monahan, 1980, p. 5)
Clarification: Ethical Question, Clinical Question, Reimbursement Question, or Legal Question?
So far, we have addressed the question, “Who is the client?” only from an ethical perspective. But the very same question is often asked from other perspectives— clinical, reimbursement, legal—and this creates confusion about its meaning and about how it should be answered.
As illustrated in the following case example, the meaning of the question can be understood only if one clarifies the perspective from which the question is being asked.
Mrs. Smith, a prospective therapy patient, is so severely depressed that she can make it to the intake session only with Mr. Smith’s help. The therapist is not sure Mrs. Smith can provide adequate information for making decisions about dangerousness or for planning treatment. Mr. Smith is therefore invited to join her in the intake session and to attend some of the early therapy sessions. Mrs. Smith meets the criteria for a mental health diagnosis, but the third-party policy provided by her employer does not cover outpatient therapy, so she will pay for each session herself. Mr. Smith does not meet the criteria for a mental health diagnosis. He remains involved, as needed, in joint sessions that focus on Mrs. Smith’s current status and future needs.
5WHO IS THE CLIENT
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“Who is the client?” If this is a clinical question, the therapist’s answer might be simply that Mrs. Smith is the therapy client (or patient). However, the proposed new ethical question requires that the therapist determine the rights of all parties and clarify the therapist’s ethical obligations in behalf of those rights. So the ethical answer in this case might therefore be the following: Mrs. Smith, as the individual receiving therapy services, will have all the rights afforded to therapy clients by the APA Ethics Code. Mr. Smith, whose participation is collateral to her treatment, has the right to an informed-consent conversation in which the psychologist defines his role and clarifies the nature of Mr. Smith’s involvement, including the important fact that Mr. Smith does not have all the same rights (e.g., he may not be promised the same level of confidentiality) as the therapy patient.
Mrs. Smith’s condition improves, and she begins making new deci- sions for her own life. This complicates her relationship with Mr. Smith. Her therapist refers them to a marital therapist.
The marital therapist might say: “Clinically, I consider Mr. and Mrs. Smith to be equally my clients” (or perhaps, from a systems perspective, “Clinically, I consider the couple to be my client”). The answer to the new ethical question might be: Ethically, they each have all the rights afforded to therapy clients by the APA Ethics Code, including the right to know whether or not I promise to maintain the confidentiality of communications made to me by one person when the other is not present.
Mr. Smith requests that the marital therapist submit a reimbursement claim to his managed care organization, which provides coverage for outpatient therapy, including family therapy.
The couple’s therapist now asks, “Who is the client?” as a reimbursement question. In that context, the question will require a singular answer because third-party payers require that claims be filed in the name of one covered individual, even if the services are provided to more than one person (as in couples or family therapy). In this case, the therapist must determine whether Mr. Smith’s policy covers marital therapy and decide whether it is appropriate to file a claim under Mr. Smith’s name, and if so, under what diagnosis. Depending upon who has coverage and who qualifies for a mental health diagnosis, the answer to the reimbursement question may be completely different from the clinical and/or ethical answers, which will remain the same regardless of how the reimbursement question is answered. In this case, the answer to the reimbursement question may be either “Mr. Smith” or “no one,” but that answer will vary case by case. If the couple’s therapist does decide to submit a claim for reimbursement under Mr. Smith’s name, the new ethical question serves as a reminder to protect Mr. Smith’s right to be informed about what will be disclosed and the implications of disclosing it and (once so in- formed) his right to give (or to refuse) consent.
Mr. and Mrs. Smith decide to separate. Mr. Smith files for divorce and for custody of their two minor children. He alleges that he has suffered great emotional distress as a result of Mrs. Smith’s depres- sion and that she is still not emotionally able to provide good par- enting. To produce evidence of this in his custody case, he wants both therapists to testify at the custody hearing. His attorney suggests that before making that decision he should invoke his legal right under HIPAA to obtain copies of the records.
For both therapists, “Who is the client?” now becomes a legal question that may take numerous forms: “Who has a legal right to obtain a copy of mental health treatment records?” or “Whose consent is legally required for voluntarily releasing records in a multiclient case?” Further legal questions will need to be answered in the context of the court case if a subpoena or court order creates a legal demand for involuntary disclosure of records, but one party contests the disclosure. “If one client receiving couple therapy waives privilege, does the privilege still apply to the other member of the couple?” (Pope & Vasquez, 2007, p. 146). The legal answers will differ from state to state.
Note, however, that each of these legal questions may also be asked as an ethical question, clarifying each therapist’s ethical responsibilities about the confidentiality and disclosure of records. In such cases, it is easy for psychologists to become so focused on one meaning of the question that they forget to ask and to answer the others. Focusing on the reimbursement question can distract from the clinical question, or can lead to the mistaken assumption that both answers must always be the same. Similarly, when confused about the legal question or intimidated by legal demands for information, psychologists may have difficulty separating this from the clinical and reimbursement questions. But it is even more problematic and potentially more harmful to clients if psycholo- gists are confused about the ethical question or forget to ask it at all. In that event, the rights of all parties can be placed at risk.
Throughout this case example, the ethical question has remained the same: “What are my ethical responsibilities to each of the parties in this case?” The two therapists needed to give different answers. But for both, one part of the answer was that they had an ethical responsibility to protect the right of both parties to receive, in advance, information that might affect their decision to partic- ipate. This required both therapists to be prepared to communicate a great deal of information before the relationship ever began. Such planning could have helped them anticipate the potential ethical–legal dilemma about confidentiality, giving them the op- portunity to consider, in advance, their ethical options for respond- ing to it. “Virtuous psychologists who demonstrate practical wis- dom will cultivate a habit of deliberating about the salient ethical issues that they are likely to encounter, anticipate them, and develop policies to proactively address them” (Knapp, Gottlieb, Berman, & Handelsman, 2007, p. 58).
Unlike “Who is the client?” the proposed new question is easily identifiable as an ethical question. Its meaning is so clear that it would never be mistaken for a legal, clinical, or reimbursement question. It encourages psychologists to clarify all their relation- ships, exercise forethought, and become more ethically planful. These are important advantages of making the change.
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Received June 23, 2008 Revision received September 2, 2008
Accepted September 3, 2008 �
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