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Saturday, August 12, 2006

Your Secret is Safe with Me... (unless)

This is a riff of Shrinkrap's Undisclosed Locations, regarding the duty to inform, and Dr. A.'s discussion of Online Drugs, about getting to the truth, and the consequences of not doing so. In the last two years, I have had cause to question my "duty to inform" patients of my requirement, by law, to report such things as child abuse, domestic violence, direct plans to do great bodily harm or kill another, and to intervene in case of substantial impairment such as suicide. In California, it is quite specific. In a private setting, I always discuss with a patient the boundries of confidentiality in the initial session. But how is this applied in a prison setting? The question is not whether I must report, but rather, am I obligated to inform the patient that I am obligated to report.

There is no specific law I can find in CA that obligates me to inform a patient of the existing law that is in force; that I have no legal responsibility to warn as to the consequence of possible disclosures. I would appreciate any information to the contrary. Nevertheless, It seems to me, that there are issues of logic and obviousness in operation here. I have seen signs prominently displayed in prison psychiatrists' offices detailing the exceptions to patient confidentiality. If I tell you I am required to report child abuse, how likely are you, then, to tell me you committed child abuse? But again, how badly do you want me to know? I have learned only by experience, for example, that unless you specifically inquire about matters of, say, sexual abuse, most people won't offer the information. When a corrections patient asks, "Do you want me to tell you the truth?" I must admit that there are occasions when it flashes through my mind, "No! Don't tell me!"

Further, this issue has been dismissed by other providers with the argument that inmates know their phone calls are monitored; know their mail (incoming & outgoing) is read; know that custody staff is present and listening during visitations. Therefore, they should have no presumption of confidentiality. Any contractor coming into prison from the outside is considered staff, and inmates are presumed to know that what you tell staff can be used against you. I want to be clear, however, that information of an historical nature (e.g. you confess to me a murder that law enforcement is unaware you committed), remains confidential. But if I am provided with future planning (again, say, to murder someone), I am obligated to report.

The American Academy of Psychiatry and the Law (AAPL) has offerred ethical guidelines that "supplement the Annotations Specifically Applicable to Psychiatry of the American Psychiatric Association to the Principles of Medical Ethics of the American Medical Association." Quite a mouthful. These ethical guidelines are specific to forensics in that "a forensic evaluation requires notice to the evaluee and collateral sources of reasonably anticipated limitations of confidentiality," and makes a clear distinction that an evaluator must use continuous caution to prevent that "an evaluee may develop the belief that there is a treatment relationship." And to those who would take on a forensic role for a patient they are treating, be aware (duh) that "this may adversely affect the therapeutic relationship." Several important points: these guidelines do not expand upon reasonable anticipation; I am not a forensic expert (I just happen to work in a prison as a contractor); while I refer to those I see as "patients," I am not providing direct treatment; and I do not report my findings to law enforcement or the courts. My findings are reported to a receiving parole physician. I am only required to report to law enforcement as noted above, PLUS, issues that are the necessary for the safe operation of the Department of Corrections (e.g. plans to escape, possession of contraband). You may have read of my previous dilemma.

Finally, there is the obvious conflict with law enforcement. I cannot and would not discuss a patient's condition or symptoms with custody staff unless I needed assistance - suicide immediately comes to mind. In the above mentioned case, custody staff was not pleased that I did not pursue the location of the weapon. I am more interested in the fact that my inclination was to stop the discussion. Would I have told the CO's the location of the weapon had the patient told me? Certainly. It is the legal and ethical response. But I do not like feeling like law enforcement: ordering patients to the ground, issuing violations, "forcing" the illusion of respect, reporting things like missing paper clips and pens. It feels against my nature, against my ethics, and against my profession to "betray" confidence.

In my head, I know it is the correct thing to do, but my heart is resistant.

6 Comments:

Blogger ClinkShrink said...

This is a great post and you do a terrific job of presenting some of the ethical isues we deal with---you should really consider submitting this to Grand Rounds.

Only two thoughts I would add:

First, there may be system-specific policies that govern informed consent for treatment in a correctional facility. Some jurisdictions have requirements for signed consent, and the consent forms spell out the conditions for disclosure. These conditions include (usually) the state mandated disclosures as well as the facility-specific things like disclosures related to escape, contraband, etc.

The second point is a bit of a quibble, I'll admit. I think you are doing forensic work. Forensic work includes the provision of clinical care in a correctional setting. It is both clinical and consultative in nature. Disability evaluations, fitness for duty evaluations, personal injury evaluations, all of these are common types of civil forensic work. The difference is that you are not being retained by an attorney or working under a court order. It's a difference in agency or duty, not specialty. Your duty is primarily to the agency that hired you to do the evaluation. It sounds like you don't have clinical responsibilities for your evaluees (consumers--ugh/prisoners/inmates/defendants). They are not your patients, if I'm understanding your role correctly.

I'm rambling. Thanks for expanding on an important topic.

August 13, 2006 6:19 AM  
Blogger Roy said...

Great post, Foo. You've really got me thinking about how different things are on the inside. I rarely have to think about dual-agency as it's always quite clear about my role as an individual's physician.

And Clink, Foo said he wasn't an expert; but, I agree, he is doing forensic work.

August 13, 2006 7:31 AM  
Blogger Dr. A said...

I agree, great post. I know I rambled on about medications, but you bring up great ethical questions that I deal with every day in a different setting.

If a teenager brings something to my attention, I'm well aware of my legal obligations and whom I should contact. But, what is my ethical obligation to that teenager and his/her parents or guardians? What if an elderly patient reveals info to me? I know my legal obligations, but what about my ethical obligations both to my patient and my patient's family.

Tough questions. Great exploration of these issues. I'm going to add you to my blog list, if that's ok.

August 13, 2006 9:19 AM  
Blogger On the Same Page said...

Clink - The hassles I go through with written consent, for example to complete an SSI application, is so ridiculous. I went through the CDC process of clearance (fingerprinting, FBI, US & CA Depts.of Justice - or is the Dept. of Justices?), have gate clearance approved by CDC & the warden, and have a CDC-issued ID that allows me to enter any prison in the state. I have even been graciously and unhesitatingly received on Death Row (another post altogether). Why do I need a patient to sign a general consent for release of medical information to me? Because that's what the chief psychologist thinks I should do. Go figure.

Roy - my expertise is avoiding the label, "expert!"

Dr. A. - I do not fear ethical dilemmas, but as you noted, but their consequences, real or imagined (and the imagined are worse). I am honored to add you as well.

August 13, 2006 11:06 AM  
Blogger Wrkinprogress said...

A question for those of you medical professionals who choose to practice in correctional facilities -- why did you choose this particular area of practice? It's fascinating to read about the challenges you face. I have managed private psych practices and other medical specialties, as well as having worked in the business office and medical records department of a full service hospital, but it's clear that your world is quite different from the outside. It's also pretty obvious that there are quite a few folks who are incarcerated by who should be or should have been reasonably well-treated for mental disorders. Not trying to start a rant on deinstitutionalization here, but I am curious as to how those of you who do this work came to choose to do it.

August 13, 2006 2:11 PM  
Blogger Dinah said...

I'll make it unanimous with the Shrink Rappers: I, too, liked this post.

Reminds me of: in Maryland, there are laws requiring that PAST child abuse be reported, and the attorney general's interpretation (which is known to those of us in private practice) specifically states that this is to include abuse long ago and even if the perpetrator is dead. Funny, but when psychiatrists go to report such abuse, they get a bit frustrated when no one is very interested in taking or following up on the report. As a clinician, I always find this a bit strange: a patient tells me she was abused, but she grew up in another state, doesn't offer the name of the perpetrator, much less his/her address from so long ago, and last I checked I'm not a detective. Hard to figure out exactly what needs reporting, and I'm waiting to see a patient who's HASN"T had some hx of abuse in childhood. For reasons unclear to me, most psychiatrist seem to feel this applies to sexual abuse only. The last couple of years, bills have been submitted to the legislature that would Criminalize the failure to report. My random and rambling association as I attempt to empathize with all you forensic experts.

And, really, you know I'm against the Baby Blue purse. Real men may eat quiche, but they don't carry diaper bags in one hand without a baby in the other.
(you are starting to get my sense of humor//??? Clink gives lessons on Saturday mornings at 8:30, right before she starts her martial arts.)

August 13, 2006 7:33 PM  

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