By: James R. Corbin, MSW, LSW
What are the ethical and legal imperatives of client confidentiality, and what impact do they have on the therapeutic relationship? Perhaps the relationship that exists between the mental health system and the law could be best described as “an uneasy alliance” (Melton, Petrila, Poythress, & Slobogin, 1997, p. 3). Many mental health professionals would consider themselves fortunate to avoid contact with a system whose laws and procedures often seem foreign to the therapeutic aims of their profession. On the other hand, attorneys and other professionals surrounding the practice of law may view the mental health profession as a nebulous and somewhat unreliable science, particularly when it intersects with their system.
However, their shared history leaves little doubt that their present and future relationship is here to stay; their intersection is unavoidable and can be one that is both mutually favorable and beneficial. Since Muller v. Oregon (1908, U.S. Supreme Court) and critical court decisions such as Brown v. Board of Education (1954, U.S. Supreme Court), evidence from the social sciences has been used in the judicial decision-making process (Levine & Wallach, 2002). For the clinician, a working knowledge of basic forensic social work would help in navigating the system of law in a way that is both helpful and contributes to the best interest of the client.
Therapeutic jurisprudence is a term coined by David Wexler and Bruce Winick that describes the problem-solving process between two systems—a study of the impact of the system of law on mental health, as well as the impact of the social sciences on the law (Wexler, 1990; Wexler & Winick, 1991, 1996; Winick, 1997). With the increase in societal problems such as divorce, crime, substance abuse, and family violence, as well as the clear impact of mental illness on crime, scholars and professionals in the practice of law and the social sciences have been inextricably linked when looking at societal and systematic responses to these phenomena (Levine & Wallach, 2002). Those concerned with the practice of therapeutic jurisprudence focus on such problems as the manner in which the court system deals with the issues of domestic violence and substance abuse. The mental health system and our nation’s criminal justice systems (as well as civil court systems) depend on the expertise and knowledge base from each respective discipline, as well as the prudence of those specialists who have combined expertise (i.e., forensic social workers and psychologists), in attempts to address and solve problems. Both fields inform the practice of one another.
The Conundrum of Confidentiality
One of the issues that is often in contention between these systems is the ethical responsibility to maintain a client’s confidentiality. Professionals in each field recognize its importance and have parallel processes in this regard—attorney/client privilege (in the realm of law), and client/clinician confidentiality (in the field of social work and related practice). It is one of the basic tenets of the therapeutic relationship and one that is an essential agent to the helping process for attorneys as well as clinicians. Indeed, it is a clinician’s ethical responsibility to maintain the privacy and confidentiality of clients and to practice within the confines of the law and in an ethical manner (American Psychological Association, 1994; American Psychological Association—Committee on Ethical Guidelines for Forensic Psychologists, 1991; Clinical Social Work Association (CSWA) Code of Ethics, 1997; National Association of Social Workers (NASW) Code of Ethics, 1996).
The NASW(1996) and CSWA (1997) codes of ethics outline the values and principles that govern social work practice and guide our profession in making ethical decisions. They compel licensed social workers to maintain the client’s privacy and confidentiality except under very specific circumstances. There is a particular portion that serves as a guide from which social work professionals may draw upon surrounding certain legal proceedings. It is as follows:
(j) Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client’s consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection. (NASW, 1996, Ethical Standards, 1.07)