Confidentiality within NHS psychological services

It is an unfortunate occupational hazard that psychologists must face complex ethical dilemmas to which BPS and NHS guidance remains vague and/or fails to address (Barnett 2007). One area that remains particularly unclear is when, or even if, psychologists should breach confidentiality in the interest of the public good. Despite widespread acknowledgement of the moral uncertainty surrounding this domain, guidelines from regulatory bodies remain overly broad and delegate much of the decision making to the prerogative of the psychologist. With this in mind, these guidelines aim to assist NHS psychologists in making decisions regarding confidentiality by considering both NHS and BPS guidelines alongside current research and literature.

Confidentiality is the ethical cornerstone of a psychologist’s duty, yet frequently it can also become an issue of uncertainty. This is reflected in the fact that amongst the complaints made to professional bodies each year, confidentiality breaches are by far the most commonly cited (Tribe & Morissey 2005; Warburton 2005).

Psychologists working in the NHS are currently accountable to both NHS and BPS ethical directives, which define confidentiality as “a duty of confidence arising when one person discloses information to another.” They advise that holding such information in confidence is both an ethical and legal obligation and that any breaches must be restricted to “professional purposes” (BPS 2009; Department of Health 2003).

Confidentiality is an important ethical requirement for many reasons and is essential clinically because without it, psychologists struggle to build a trusting therapeutic relationship (Fulford 2001). Furthermore confidentiality is also a legal proviso; namely under the Data Protection Act (1998) and the Human Rights Act (1998). The NHS and the BPS do currently offer guidance on confidentiality and have procedures for sanctioning those contravening it. Within these guidelines both bodies acknowledge situations where it may be legally or ethically necessary to breach confidentiality, including when there is concern about the welfare/safety of a child and when there is an overriding public interest. Further, the BPS also advises that infractions of confidentiality may be necessary when clients themselves are at risk and both bodies advocate disclosure when court orders have been made (BPS 2009; Department of Health 2003). However, much of the literature reviewing these guidelines concede that they are so broad that they leave too much to the prerogative of the psychologist and that from this ‘ethical dilemmas’ arise (Barnett 2007; Fisher 2008; Taylor & Adelman 1998).

The ethical dilemmas encountered by psychologists are broad; however one that is commonly cited is whether information should be disclosed in the face of significant public interest e.g. cases involving “murder, rape, treason, kidnapping or child abuse” (Department of Health 2003). However, due to the broad provisions within both BPS and NHS guidelines, deciding whether to breach confidentiality can be a difficult task. Often, professionals are concerned that they will either be sanctioned for disclosing information or face claims for negligence if they do not (Kaempf & McSherry 2006). Therefore, these guidelines aim to advise psychologists in dealing with situations where public interest may outweigh the obligation to maintain confidentiality.

Ethical guidelines for the disclosure of confidential information in the public interest:

1. Psychologists should be aware of the limitations to clients and their obligations to public interest.
Psychologists should be prepared to do some “homework” on ethical guidelines, legal obligations and their own ethical position regarding confidentiality (Fisher 2008). The best solutions to a variety of foreseeable ethical dilemmas should also be considered in advance (Knapp et al. 2007). However, it is unrealistic to assume that all situations can be foreseen or prepared for and therefore psychologists should consider resources and peers they can consult with in case of a dilemma (Bennet et al. 1990).

2. Clients should be honestly and accurately informed of the limitations to confidentiality.
It is ethical to inform patients of their right to confidentiality and it’s limitations before therapeutic engagement commences (Knapp & VandeCreek 2001). However, this can potentially hinder the process of building trust and therefore it is advisable that psychologists develop a strategy to preserve the development of trust, standardise it and ask peers to review it (Taylor & Adleman 1998).
In situations where a client’s capacity is in question, psychologists should seek guidance before pursuing therapeutic engagement (Roberts 2002).

3. Psychologists should seek to obtain informed consent to disclose information in pre-agreed circumstances.
Psychologists should also endeavour to obtain a client’s informed consent to disclose certain information in pre-agreed circumstances (Fisher 2008). These situations may include those that the psychologist has considered in their own preparations as well as any listed in NHS and BPS guidelines e.g. risk of harm to self or a third party. However such a process may hinder trust and therefore it may require careful discussion with some clients in order to reassure them (Taylor & Adleman 1998).

4. Legal demands must be yielded to unless they can be legitimately contested.
Pre-planning and self awareness may be extremely valuable in situations where psychologists are legally obliged to disclose confidential information (Fisher 2008). However, it is not possible to plan for every eventuality and in situations where the psychologist is ethically opposed to disclosure it is worth bearing in mind that court orders can be contested and there may be a case for “conscientious objection” (Knapp et al. 2007). Even so, if the final decision of the courts is that information must be disclosed; psychologists must do so as confidentiality is just one aspect of ethical practice and there is an ethical responsibility to protect public interest (Pope & Vasquez 2007).

5. Psychologists should seek guidance from appropriate persons, regulatory bodies or organisations before making a disclosure.
Whatever the conclusions reached in an ethical dilemma, it is imperative that psychologists consult with appropriate colleagues and/or take the issue to their manager/supervisor. When seeking guidance, psychologists should already have thought about their own position in the matter; the issues they would like to discuss and be prepared to document the consultation. Also, it is advisable to consider consulting with multiple individuals who will approach the dilemma from different perspectives (Corey et al 1998) and seek advice from a professional/colleague with experience in that particular area (Behnke 2007).

To conclude, these guidelines set out to offer comprehensive, evidence-based guidance for psychologists facing ethical dilemmas in confidentiality – specifically whether to break confidentiality when there is an element of public interest. Five evidence based guidelines are proposed for such situations; however these guidelines cannot spell out the correct decision for every ethical dilemma and therefore clinical judgement remains an important aspect of ethical decision making.

The impact of the limitations to confidentiality on the client-psychologist relationship has also been considered and it is concluded that despite the potential negative impact on trust, disclosure of information in some situations is necessary. However psychologists are advised to discuss the issue in an honest manner that helps to preserve the construction of trust between themselves and their client.

It is also acknowledged that these guidelines are limited in that they cannot offer rigid, universal guidelines due to the area’s complexity; however, it would be unrealistic to expect any set of guidelines to be able to provide this. Therefore, these guidelines are successful in offering evidence-based guidance on ethical decision making in regards to confidentiality and pubic interest; however due to the complexity of the topic, they remain limited in certain respects.