Choosing between the law or your ethics, a dilemma for counselors.

By David Joel Miller, MS, Licensed Therapist & Licensed Counselor.


What if the law says the counselor should do something but doing it will hurt someone?

Occasionally a reader sends in a question that has far-reaching consequences. The question below made me stop and think about what we counselors and therapists do, and how that fits into the larger context of the world around us and the issues of what is right and wrong.

“What if a 16-year-old girl is being sexually abused by her uncle and he threatens her not to tell anybody, but she tells her therapist. On the other hand in the girl’s culture, any girl who lost her virginity before marriage should be killed, what would a therapist do in this situation?”

Every profession has those times when the ethics of that profession conflict with the laws of that time and place. Psychiatry and mental health are not immune to these conflicts.

In past posts, I have written a lot about what counselors have to report and what they can keep confidential. My posts were based on the laws and customs of America, California in particular. They assume that the people who live here all adhere to the dominant culture and values and that things will work out the way they are supposed to.

What about the times that things do not go according to plan?

Psychotherapy as it is currently practiced, talk therapy, has a distinctly western flavor. The things we take as givens here in America may not be truths in other places. What is true today has not always been true even here in the United States.

The status of Women and Children has changed dramatically in the history of the United States. The standing of women, their rights to education, the vote, and the treatment that they can expect are all very recent developments here. As recent news stories have demonstrated the consequences of violence towards women and children continue to evolve.

We have heard older colleagues, those who lived in Europe during the time of World War II and the Holocaust, told in detail why they would resist telling any government what a client reveals in therapy for any reason. This question from a reader suggests just such a reason for not revealing a mandated report.

Making exceptions to confidentiality is and always has been a slippery slope. Trying to apply current American standards to the practice of therapy in another place is highly problematic. Lest the reader think this is only a problem in some countries somewhere over there, I need to remind them throughout this essay of the times that American Therapists have been asked to lower the bar and report crimes of all sorts.

First, let me deal with the specifics of this question as it might happen here in California, then what might happen if American therapy was being practiced in a country with non-western laws, and lastly how these values creep may affect clients everywhere in the future.

To try to navigate this conflict between confidentiality and the government’s desire to know what people in therapy say we have created a host of laws and those laws have been modified by further statutes and court decisions. I am no lawyer but the lawyer’s rigged this game by telling us that “ignorance of the laws is no excuse.” Here is my lay understanding of our laws and an encouragement to anyone who is faced with these kinds of situations to consult your own legal advisor rather than rely on my imperfect understandings.

In the question above. The client is over 16. There would be different rules if she were 14-15 and other laws if she was under 14.  A client over 16 can consent to most kinds of sex. If the uncle is younger than age 26 and the sex is vaginal, no report. We report child sexual abuse, not crimes. What if the Uncle was 40 or he sodomized her? Then by law, we need to make this report.

A goal of child abuse reporting is to protect children. So if Child Protective Services believed that, based on cultural values, this family might kill this daughter for not being a virgin they could ask for a hold and remove the child from the family to protect her. Will they? That is questionable. The police or courts may not approve of the removal. The family may deny that they will harm the child and the child may stay in the home.

There have been cases reported in the media here were women committed adultery and the family knowing that they could not harm her here have returned to the country they came from where she could be stoned to death for that adultery. If this situation happened here in California could the family still kill this child or send her back to their home village where she would be killed? I think this is possible. Should our system protect her? Absolutely. Can we guarantee this? Maybe not.

This is a case where the therapist will need to consult with an attorney and then may elect to talk with the Child Protective Services or not depending on their belief that the system could protect this client, that and their sense of right and wrong. This is one reason that “informed consent” is so important. This client and all clients should be told upfront about what will and will not be reportable. In practice, this means trying to guess what things the client will want to talk about and doing the informed part, having long documents explaining informed consent, or having to stop if things are getting into an area that may be a problem and explain this as it applies to that client.

What if this therapist is practicing in a country where killing women who lost their virginity before marriage is an accepted practice? I think that American notions of ethical behavior may not apply well when a professional tries to practice western style therapy in a place that does not uphold western values.

Take an extreme case. If a counselor was still practicing in an area now controlled by ISIS (ISIL) they may be required to report clients who are practicing a “heretical religion” the result might be therapists who are ferreting out infidels and marking them for elimination. A therapist working in a totalitarian country would have to be very careful to not become a tool of the state in finding undesirables. Think about therapists who practiced in Nazi-occupied areas. See why they might be opposed to any requirement to report anything to the government?

Is America asking therapists to become informants?

I think that there is an increasing pressure to have therapists spot people who are doing illegal things and tell on them. Every time there is a violent crime on the news there are questions about why some mental health person did not spot this and report or stop it. There are many reasons why this does not work. The majority of people do not see therapists at all, ever, even when they need to. Those who do see a counselor often do not tell us that they are planning to do something.

Every therapist sees lots of people who have anger issues or emotional regulation problems and who MIGHT get violent. So far I have seen no system that predicts potential violence accurately enough that we could start locking people up who may do something in the future. There are just so many potentially violent people that the jails would not hold them all. Only a small fraction of those who “might become violent” ever do.

We have gone a long way to prevent people from being locked up for what they think or what someone else thinks they may do. There was a time when any man could get his wife locked up in a mental hospital for years just by saying she was crazy. Now the standards to detain people are pretty high and then only for a few days to be sure.

So what other things are therapists being asked to report?

Think of some of the things that could be potential reports and therefore exceptions to confidentiality. How about domestic violence? Or cruelty to animals? What about someone with AIDS who is not using protection and has multiple sexual partners. Are they doing something that could kill another person? Should we tell women if their partners are having affairs or what about homosexual experiences?

What about people who drive drunk? Or do drugs? If someone is selling drugs to elementary school kids? Should that get reported? Or maybe just drug dealing in general? How about cheating on your taxes or financial fraud?

While we are at it what about reporting terrorist activities?

There are some things, like child abuse and plans to kill yourself that most of us would agree need to be reported. I very much believe that therapists and society in general needs to keep all these exceptions to confidentiality at a minimum otherwise we will be turning therapists into practitioners of “enhanced interrogation techniques.”  Any of you who say that those techniques are not torture, would you like your ex and her lawyer to question you that way?

In a free society, we need to maximize people’s ability to be safe in what they tell their counselor. We also need to recognize that it can be a short hop from mandated reporting to fingering people who are members of an unpopular religion or political group. Remember that many societies are not as free and safe as we are here and in America. Staying this free requires vigilance and it means keeping the standards of confidentiality as high as possible.

To the reader who asked this question my suggestion is that someone in this situation should not be talking about this unless they can be sure about their safety. They should look for someone who can help them get to safety if possible. Try to find a way to end this situation soon or an unwanted pregnancy may end you.

Sometimes all a counselor can do is to help a client learn to cope with the situation and hope that situation will change. Hope this long answer shed some small light on the topic of confidentiality and mandated reports.

Staying connected with David Joel Miller

Seven David Joel Miller Books are available now!

My newest book is now available. It was my opportunity to try on a new genre. I’ve been working on this book for several years, but now seem like the right time to publish it.

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Baldwin struggles to survive life in a post-apocalyptic world where the government controls everything.

As society collapses and his family gets plunged into poverty, Baldwin takes a job in the capital city, working for a government agency called the Story Bureau. He discovers the Story Bureau is not a benign news outlet but a sinister government plot to manipulate society.

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Letters from the Dead: The third in the Arthur Mitchell mystery series.

What would you do if you found a letter to a detective describing a crime and you knew the writer and detective were dead, and you could be next?

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