One of the issues that has always felt gray to many psychologists is when the APA (2010) Ethical Principles of Psychologists and Code of Conduct (Ethics Code) conflicts with the law. Should a psychologist follow the legal code or the Ethics Code?
The Ethics Code specifically states in section 1.02, “If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict. If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority.”
Unfortunately, the steps used to “resolve” these situations are not spelled out. And, if this were an easy task, I wouldn’t be writing this article. Like so many ethical dilemmas, the answer is that it depends upon the situation. In order to examine this question more thoroughly, let’s look at two examples.
The first has to do with telepsychology. For reference, “telepsychology” is the use of technology to deliver services to clients (e.g., phone, video, etc.). For a longer definition, see the APA Guidelines for the Practice of Telepsychology. Additionally, the location of treatment is considered to be wherever the client is at the time of these services. And, all 50 states require licensure in their state to practice there. A psychologist could get temporary permission to practice in another state, but not all states allow this, and it could prove to be time consuming.
With these facts in mind, what happens if a client finds herself in a crisis while visiting Tennessee and calls her psychologist in Nebraska for help? The law in Tennessee states that the psychologist cannot practice in Tennessee without a license. The APA Ethics Code says that we need to take care of our clients and do no harm. Thus, the ethics and law collide in this circumstance.
In this instance the APA Ethics Committee and The Trust have advised (via personal communication) that a psychologist should take care of the client but not continue to treat her on a regular basis out of state; stabilize and then assist the client in finding local resources.
For example two, let’s look at the confidentiality of minor clients. The law states that a legal guardian has the right to look at a minor child’s record in most states. However, sometimes the highest ethical standard of care may be to maintain confidentiality (4.01) by withholding these records from a legal guardian for the safety of the minor. Thus, again, ethics are in conflict with the law.
For this example, the minor is 13, and he lives with an emotionally abusive stepfather who legally adopted him when he was 7. The psychologist has already reported the stepfather for emotional abuse to the Department of Child and Family Services (DCFS) in Georgia, but DCFS stated that emotional abuse didn’t warrant a claim based on the abuse law in Georgia.
In this instance, most ethicists agree that it would be best to prevent the stepfather from seeing the client’s record if he shared content that could put him in danger. A reasonable step is to explain to the stepfather that it may jeopardize the clinical relationship and could cause harm for the client to feel he doesn’t have a confidential place to express his feelings.
If the stepfather pushed further, technically, the psychologist could resist turning over the records until presented with a court order demanding the psychologist to oblige. Even then, you can fight a court order with an attorney’s help and/or by speaking about your concerns to the judge who signed the order.
In summary, the primary points to keep in mind when the Ethics Code conflicts with the law are: 1) What is in the best interest of the client? 2) Is there any way to negotiate the situation to stay within the law or as close as possible to it? If not, could you ultimately defend your actions in a court of law? 3) Did you consult peers, an ethics board, risk management specialists or an attorney? 4) Did your notes thoroughly explain your decision-making process?
Becky Beaton, Ph.D., is chair of the Ethics Committee of the Georgia Psychological Association. Her email is: firstname.lastname@example.org.