Confidentiality

All that may come to my knowledge in the exercise of my profession or outside of my profession or in daily commerce with men which ought not to be spread abroad, I will keep secret and will never reveal.

Nowhere is Hippocrates' advice more sorely tested than in the treatment of the sex offender. The problems centre around the disclosure of information to third parties. Typically, the clinician is made aware by the patient (usually, but not invariably, a male) that he has committed or intends to commit a serious crime, usually sexual and/or violent, against another person. The patient is not, in the normal sense of the word, psychotic. He is therefore responsible for his actions. Why, then, does he tell the clinician of his intentions? What courses of action are open to the clinician and what are the consequences of such actions? At the centre of these questions lies confidentiality. To whom does the clinician owe his allegiance—to the patient or to the potential victim? There are many layers to these problems with surprisingly few simple answers. A clinical example may help us to explore the area.

Case Study The events took place some 15 years ago. Mr K was a middle-aged man with a long history of indecent exposure against young girls which gradually escalated in seriousness to include paying the girls to masturbate him. It was compulsive and he would offend two or three times a month over a period of 20 years. Eventually, after a couple of non-custodial sentences, he was convicted of gross indecency and imprisoned for a year. Prior to the court case he was referred for assessment by the probation service. The recommendation was made that he should serve any custodial sentence the court saw fit to impose and that he should then be re-referred for treatment if he himself requested it. Shortly after his release the clinic received a request from his probation officer that he now be considered for treatment. He was offered outpatient psychotherapy, an offer which he readily accepted. Although apparently compliant, his previous history led the therapist to hold a healthy scepticism as to whether Mr K was continuing to offend during the early months of his treatment. About 18 months into the treatment he told the therapist that he had moved in with a divorced woman with two young girls. He described the dilemma of standing on the landing and being unsure which bedroom he should enter—the mother's or the children's. This in turn placed the therapist in a dilemma—should he break confidentiality and inform the police, probation services, or social services, or should he maintain confidentiality and depend on the power of the therapeutic relationship and interpretation to contain a potentially disastrous situation. In the event he chose the latter course. He interpreted that Mr K was communicating his intentions because he, Mr K, was aware of the damage that would be done to the children and that he was asking the therapist to stop him. The therapist went on to link the current situation to Mr K's own childhood: his father had gone missing at sea during the war; an uncle had led him to believe that if he prayed hard enough his father would return. His father never did return. Mr K felt betrayed and abandoned and in adolescence began to experience (retaliatory) paedophilic impulses. The only time in his life that he was free of these impulses was when he was doing his national service in the Navy.

The therapist interpreted that Mr K was looking for external authority to control his destructive impulses, a control which he had only found for himself when he had donned the uniform of his dead father. Could he not now exert his own authority without external coercion or a containing uniform?

The next week, much to the therapist's relief, he reported that he had moved out of the house and was again living alone. He did not offend again for 13 years.

Many points can be drawn from this story, including the fact that Mr K has given his written permission to publish his clinical material, albeit in a disguised form. The first, and perhaps most important point, is that in the United Kingdom disclosure of confidential information is at the clinician's discretion—except when required by Act of Parliament (e.g. notification of diseases) or by order of a court. A common misconception is that psychiatrists are required to disclose by law when they believe that one of their patients may be going to commit a serious crime (usually sexual or violent). There is, in fact, no common law obligation to disclose such information, although psychiatrists are entitled to do so if they so decide. It is the anxiety generated by the responsibility of making such a decision which unwittingly promotes the belief that the psychiatrist has no choice.

The decision to disclose is based on the judgement that the responsibility to protect the public outweighs the duty to protect the confidentiality of the patient. In Mr K's case the therapist would argue that the longer term objective of protecting many children was better served by maintaining confidentiality, keeping the patient in treatment, and allowing the psychic change of internalizing a superego. In the short term this involved the high-risk strategy of leaving the children at risk (for a week at least) in the hope that the patient would feel himself empowered to take responsibility for his own actions. Had things turned out wrongly—had Mr K molested one of the children—the therapist would have faced two forms of censure. The therapist could have been sued in the civil courts by the injured party (the child) for damages for failing to discharge his or her professional duties, the judgement being based on whether there was a reasonable body of professional (medical) opinion which would have agreed with the therapist's actions. This does not imply or require unanimity within the profession. The second form of censure would be that the professional body of the therapist (the General Medical Council in this case) would, using the same basis for their judgement, consider him or her guilty of professional misconduct and revoke the therapist's certificate of registration to practice.

It is significant that the events described above took place in the early 1980s. It is open to question as to whether the therapist would make the same judgement in the late 1990s—a time of virtually zero tolerance for sexual crimes. The clinician must recognize changing social values and pressures.

The fundamental psychopathology of the patient and his current state of mind will be used by the clinician in reaching a judgement as to whether the patient can/might act responsibly. The nature of the relationship between the therapist and the patient will be equally important, i.e. the states of the transference/countertransference.

In this case the nature of the patient's paraphilic personality disorder was enduring and antisocial and was to an extent predictable. He was not in the throes of a depressive episode which might have projected him into further acting out, and his relationship with the therapist, although containing within it elements of duplicity, had the external skeleton of regular voluntary attendance. It is easy to imagine a scenario where all these factors would have gone the other way and loaded the scales more clearly in the direction of disclosure.

Notwithstanding, there are many clinicians at the time that the events happened who would have disclosed, and even more now. The therapist did not follow one piece of current guidance—he did not discuss his decision with a colleague, the first step in the process of being judged by one's peers. However, he did record his decision and the reasoning behind it. Whilst working within an organization, he was solely responsible for clinical decisions. Had he been working within a multidisciplinary team there might have been those from other professions whose code of conduct or terms of employment prevented them from signing up to such a decision—they would have been forced to disclose.

The context in which the clinician is working is obviously relevant; for example, when preparing a court report one has a primary duty to the court, and thus to the public, as well as to the patient. Most clinicians warn the patient of this dual responsibility—with the consequence that the patient may conceal the more crucial part of their history or their innermost fantasy, each of which may be vital for the best assessment of their future dangerousness.

The suggestion has been made that different professions, and indeed different divisions of a profession, should operate different thresholds for the disclosure of information, thus defining the role of each profession in relation to the patient. It is instructive that lawyers are required to maintain absolute confidentiality to their clients; it has been argued that psychiatrists have a public responsibility to protect the patient's individual right to confidentiality. In the United Kingdom the clinician must make a considered decision to infringe that right to confidentiality; statute law (e.g. notification of diseases) determines when the clinician must infringe that right and case law when the clinician may do so. In other countries, particularly certain States in America, clinicians are statutorily required to disclose whenever there is a danger to a third party. The result is that the clinician is now dubbed 'the new informant for the state'. (3) Difficult and painful as it is to achieve a balance between the clinician's duty to the patient and to the public, it is important to maintain that balance whilst continuing to enjoy the confidence of the vast majority of patients.

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