Confidentiality: Ethical and Legal Aspects for Canadian Psychologists
Cram, Susan J., Dobson, Keith S., Canadian Psychology
This paper focusses on the ethical and legal aspects of confidentiality for Canadian psychologists, with particular emphasis on clinical psychology. The concepts of confidentiality, privileged communication, and privacy are clarified. The law of privileged communication in Canada is presented. Ethical standards, provincial and federal legislation, and case law bearing on confidentiality in clinical practice are discussed. Issues of mandatory child abuse reporting, the duty to protect, informed consent, and third party and client access to records, are explored. Suggestions are made to the psychologist regarding the management of confidentiality. The helping relationship is the most fragile of all professional relationships. More than any other it requires the client to disclose intimate personal information. The confidentiality of the relationship has long been regarded as its cornerstone (Keith - Spiegel & Koocher, 1985). The area of confidentiality is complicated, however, by misunderstandings about the commonly used terms, confidentiality, privacy, and privilege (Keith - Spiegel & Koocher, 1985). Further, the ethical and legal requirements surrounding the topic of confidentiality have rarely been clarified, and never in the Canadian context.
The purpose of this paper is to explore the ethical and legal aspects of confidentiality for Canadian psychologists, with particular emphasis on clinical psychology. Space limitations preclude covering all of the relevant issues. It is not possible, for example, to cover the literature relating to research, the educational system, or the prison system. Ethical standards related to confidentiality in clinical practice will be reviewed. The issue of confidentiality as it pertains to the areas of mandatory child abuse reporting, the duty to protect, informed consent, third party access, and client access to records, will be addressed. The issue of privileged communication in Canada will be reviewed. In addition, provincial and federal legislation, and case law bearing on the practice of psychology will be considered.
Privacy, Privilege, and Confidentiality
Privacy is a basic human right accorded to all Canadian citizens. It reflects the right of an individual to control how much of his or her thoughts, feelings, or other personal information can be shared with others (Keith - Spiegel & Koocher, 1985). Section 7 of the Canadian Charter of Rights and Freedoms (1982) guarantees that "Everyonehas the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice" (p. 260). Further, British Columbia, Saskatchewan, Manitoba, and Quebec have all adopted privacy legislation: the Privacy Act of British Columbia (1979), the Privacy Act of Saskatchewan (1978), the Privacy Act of Manitoba (1987), and the Quebec Charter of Human Rights and Freedoms (1977). Confidentiality and privilege developed from the individual's right to privacy. Privilege is a "legal term that describes the quality of certain specific types of relationships that prevent information, acquired in such relationships, from being disclosed in court or other legal proceedings" (Keith - Spiegel & Koocher, 1985, p. 58). Historically, privileged communication was applied to the solicitorclient relationship, and grew from the belief that discussions between a client and solicitor had to be protected in an adversial justice system, if justice was to be served (Picard, 1984). In those circumstances where a psychologist has been accorded privileged communication in court, he or she is required to retain the client's confidence, unless the client has waived the right to privilege, or has made mental status an element in legal proceedings. Confidentiality implies "an explicit contract or promise not to reveal anything about a client, except under circumstances agreed to by both source and subject" (Keith - Spiegel & Koocher, 1985, p. …