When We Violate Confidentiality, Patients, Providers, and Professions Lose

According to a widely read article in the February 15 Washington Post, information obtained during psychotherapy sessions from children detained by the US Office of Refugee Resettlement (ORR) is being provided to attorneys from the US Immigration and Customs Enforcement (ICE). In the heartbreaking case detailed in the article, such information disclosed without the knowledge of the patient is being used to keep an adolescent refugee in detention for what is now approaching three years.

I don’t pretend to know anything more about this case than what was presented in the article, so I am writing this in the absence of much pertinent information. Apparently, the therapists in question are licensed professional or rehabilitation counselors, social workers, and one psychologist licensed either in the states of Texas and Virginia. Per the article, the young man in question arrived in the US as a refugee from Honduras from whence he fled to avoid death by an organized gang. But because of his purported gang connections, information about which was obtained in notes from psychotherapy sessions that were turned over to ORR officials, his case remains unresolved and he remains incarcerated pending resolution of his refugee claim.

Psychologists’ ethical code demands that we take special heed for those whose vulnerabilities affect autonomous decision-making. Our standards regarding confidentiality and when it can be ethically broken are clear. Section B5 of the Code of Ethics of the American Counseling Association (ACA) likewise contains clear guidance for counselors providing services to individuals who are unable to give voluntary informed consent (it is my position that no prisoner is capable of giving fully voluntary informed consent and that this must be acknowledged by any ethical practitioner working with prisoners, detainees, or detained refugees). But the ACA code is also clear that in certain instances information may be shared if appropriate disclosures are made when working with mandated clients as the individual in question clearly is. This, at least according to the author of the Post story, did not seem to have occurred, and according to the author recent changes in ORR policy have made it easier for enforcement agents to access the content of psychotherapy records.

Ethical breaches do appear to have occurred. Information provided in supposed confidence was evidently provided to other agents of the government and used against the detainee. At the very least, adequate informed consent does not appear to have been given (a particular challenge when dealing not only with an incarcerated individual, but a poorly educated one from another country who speaks a different language). Who is at fault is difficult to ascertain. Were the therapists complicit in providing protected information, or was it taken against their wishes from the record? However we apportion blame, it is a major ethical problem for those who collected the information, those who received it, and those who used it against the patient. Government counselors, attorneys, and administrators are all involved. Issues of dual agency aside, when therapists become information conduits to those who are effectively prosecutors, they stop being therapists and become witnesses for the prosecution. There may be roles for such individuals, but that role cannot be called “psychotherapist.”

Competing interests abound. We have an obligation to address the health and mental health of detainees. This is a moral obligation that cannot be shirked. At the same time, the government has an acknowledged interest in admitting refugees who will not pose a threat to citizens. Although the courts have held that refugees lack certain legal protections enjoyed by citizens, a fundamental precept of the rule of law is that those suspected of criminal behavior (as is the case in the current situation) still possess certain rights. The right against self-incrimination is one. Psychologists and other licensed mental health professionals provide complete and accurate informed consent in a manner the patient can understand. Police officers provide Miranda rights. These procedures are in no way equivalent, nor are they meant to be. When psychotherapists working in situations of dual agency forget their fundamental obligation to the patient, ethical breaches occur.

Psychologists and other health providers who work for the government can deliver ethical services by understanding their role, the complexities of dual agency, and their primary responsibility to the welfare of the patient. The confidentiality of the therapeutic relationship is essential to ethical practice and to the standing of our profession. We must ensure this standard is never violated, and we should call upon appropriate state licensing boards and other sanctioning bodies to ensure that it is not. Since the sharing of psychotherapy material between therapists and ORR agents appears to be institutional policy, I encourage each of you, as APA President Sandy Shullman has recently done, to reach out to your elected officials to demand an end to this practice.

Contact your Representative.

Contact your Senators.

Update 3/9/2020: Read the follow-up story from the Washington Post here.