1. Introduction

It is undisputable that counselling, as a discipline, is built upon the foundation of

ethics. One of the purviews of ethics in the counselling discipline is the (ethical) requirement

on the counsellor to keep whatever transpires between the counsellor and his/her client

remains confidential. In seeking counselling treatment, a client has the valid right to expect

that he/she will be safe in disclosing his/her innermost feeling and darkest secrets to their

counsellor. In other words counselling is a safe harbour where the client can pour out his/her

heart content to the counsellor or tell him secrets that the client will not reveal to other

people.

According to Bond (2010, p.155), one of the etymological origin of the word

confidentiality is the Latin word “con-fidere” which mean ‘strong trust’. This is reflective of

the high level of trust that are necessary in order for a counsellor-client relationship to work,

in other words, high level of trust emanating from the client to the counsellor is a prerequisite

for creating a conducive therapeutic counselling environment in which the client may open

up without reservation and therefore enables the counsellor to address the issues that are

causing the client concern. According to Bond (p.155) further, it is for this reason that the

safeguarding of confidential information revealed by the client becomes a high ethical

priority in the counselling profession and the profession jealously guards any attempt to

breach the same.

The American Counselling Association (ACA) Code of Ethics (2005) embodies this

ideal in Section B of the Code. Titled “Confidentiality, Privileged Communication and

Privacy”, the introduction to the Section reaffirm the counselling profession mantra that trust

is the basis upon which counselling relationship between the counselling professionals and

the client is built. In fact, the Section introductory section treats it as an ethical aspiration of

every practitioners to earn the trust of clients by “creating an ongoing partnership,

establishing and upholding appropriate boundaries and maintaining confidentiality”.

This paper will discuss a few issues regarding confidentiality by way of case study of

two main fictional characters, Jonathan and Ms. Jane Doe.

2. Discussion

2.1 Case study on confidentiality and privileged communication

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Ms. Jane Doe, an unmarried woman in her thirties and the only child in a family,

sought counselling from Jonathan, a registered and licensed counsellor in Kuala Lumpur

running his own practice. The therapy centered on Ms. Jane Doe’s dilemma because of her

past, in particular, the abortion of an out-of-wedlock foetus that had been carried out by Ms.

Jane Doe when she was in her teen and an out-of-wedlock child that she has with her UK

boyfriend (the child has since been in the custody of the boyfriend’s family). Since her teen,

Ms. Jane Doe was sent to an upscale boarding school in the UK where she abused her new

found freedom. Due to her sexually active lifestyle in her teen when she was overseas, she

was contracted with herpes simplex, a sexually transmitted disease. All of these she managed

to hide from her parents, who worked as lecturers in two renown universities in Malaysia and

were both sought-after experts in their fields.

Ms. Jane Doe, after completing her tertiary education overseas, on the other hand, had

started a new leaf in her live, and had become a certified public accountant with a reputable

accounting firm in Kuala Lumpur. Mr. John Doe, a partner in another reputable accounting

firm, fell in love with Ms. Jane Doe, the feeling was mutual and Ms. Jane Doe was equally

madly in love with Mr. John Doe. When the two decided to get serious and started discussing

about marriage, Ms. Jane Doe’s past haunted her again since she had kept her past as secret

from Mr. John Doe, a religiously devoted person. She is also afraid of her sexually

transmitted disease history, since according to doctor, there is no cure for it and once

infected, the herpes virus remains in the body for the entire life. According to the doctor

further, the herpes infection may be recurring from time to time especially during times when

the body immune system is impaired e.g. when the person contracts cold or HIV. In the

course of the counselling session, Ms. Jane Doe went for HIV screening and a few weeks

after that the result shows that she was HIV-positive. She was devastated but nevertheless

told Jonathan that she will go on marrying Mr. John Doe, who did not know about her

condition.

The burden of carrying those secret had taken its toll on not only Ms. Jane Doe’s

physical health but her mental health as well. That is the reason why she sought counselling

from Jonathan in the first place. The counselling sessions had been going on for almost one

year when suddenly Ms. Jane Doe stopped seeing Jonathan for no apparent reason, leaving

behind tonnes of unpaid bills. After Jonathan’s attempts to contact her over the phones were

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unsuccessful and after two reminder letters to settle the unpaid bills sent to her home remain

unheeded, one of Jonathan staff suggested that they send the letter to Ms. Jane Doe’s office.

Jonathan was still considering his staff suggestion when they receive a letter from Ms.

Jane Doe’s office asking for invoice of Ms. Jane Doe counselling session. When Jonathan

staff called Ms. Jane Doe’s office further, one of the staff there informed them that Ms. Jane

Doe had been transferred overseas on short notice and the bill for counselling session will be

footed by the firm. In return, Ms. Jane Doe’s employer requested Jonathan to provide them

with a complete report of the session together with assessment of her psychological

condition. Jonathan was never informed by Ms. Jane Doe of any arrangement of payment

from third party.

Several weeks after that, Jonathan was informed by Ms. Jane Doe’s parent that she

had died in an accident overseas. It was after her death that her parents came to know about

the counselling session and they demanded to know from Jonathan everything about why

their daughter sought treatment from Jonathan, insisting that as the parents to Ms. Jane Doe,

they had the right to know everything.

After the above, event Jonathan’s was called by the police to assist them in the

investigation on the cause of accident that took Ms. Jane Doe’s life as investigation shows

that Mr. John Doe may have something to do with her death as a few weeks before the

accident, Mr. John Doe had bought life insurance in the value of millions of ringgit for Ms.

Jane Doe, and after her death, Mr. John Doe was the sole beneficiary named in the insurance.

The police believe that information revealed by Ms. Jane Doe during the counselling session

might assist them in their investigation.

Jonathan had not revealed any of the information shared by the late Ms. Jane Doe to

any of the party above, as yet. But he is in a dilemma since all the parties above keep on

pressing him, while the police investigating officer warned him that the police will obtain a

subpoena and call him as witness when Mr. John Doe is charged in the court for murder of

Ms. Jane Doe.

What are the ethical implications associated with the scenarios in the case study

above? What should Jonathan do?

2.2 Analysis of the case study and discussion of literature review based on the ethical

issues found in the case study and identification of the ethical principles in the American

Counselling Association (ACA) Code of Ethics relevant to the ethical issues in the case study

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Ethical dilemmas are staple occurrences in day-to-day work of a counsellor. The

counsellor’s ability to recognize an ethical dilemma when he is faced with one is crucial in

determining whether he will decide on the dilemma ethically. In this regard, several studies

(Fleck-Henderson, 1995; Neukrug, Milliken, & Walden, 2001; Welfel, 2010) show results

which point to the fact that this critical ability is lacking in many counsellors (Constable,

Kreider, Smith and Taylor, 2011, p.2). This part will explore the case of Jonathan, a

registered and licensed counsellor in Kuala Lumpur running his own practice as given in the

case study above.

After reading through the case, this part propose to further analysed the following

central issues identified in the case as below :

1) the degree of confidentiality a counsellor owes his client when the safety of

other people is at stake (i.e. Jane Doe confidential information that she has

HIV and whether Jonathan should tell Mr. John Doe); and

2) responsibility of the counsellor to parents of the client; and

3) counsellor’s obligations to third party payers; and

4) whether there exist legal obligation to reveal confidential information to assist

police in their investigation.

5) Post-mortem confidentiality

In analysing Jonathan case above, this part will also incorporate review of literature

on the principle of confidentiality and privileged information in the counselling profession. In

the above case study, Jonathan is faced with complex situations where the principle of

confidentiality and privileged information between a professional (in this case, a counsellor)

and his client is tested to the extreme. It is in situation like this that the American

Counselling Association (ACA) urges counsellors concerned to consult decision-making

models which are widely accepted in the profession and utilize the model most appropriate to

their situation (Kocet, 2006, cited in Constable, Kreider, Smith and Taylor, 2011, p.2). Based

upon recommendation by Constable, Kreider, Smith and Taylor (2011, p.2) above, this paper

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has chosen to utilize the ethical decision-making model by Welfel (2010) - this paper

however refer to the latest work of Welfel (2012) - because that model integrate the standards

and ethical principle of the counselling profession, endorse analysis that is aligned with the

accepted moral vision of the profession and stress the importance of counsellor responsible

and dutiful thought in arriving at a particular decision. Welfel (2012, pp. 29-57) presented

counselling professionals with a ten-step model of arriving at an ethical decision when faced

with an ethical dilemma. Actually, it is a nine-step model since the final step is an ex post

facto step i.e. reflection after decision is made and made known. The ten steps are presented

below (the headings are reproduced ad verbatim from Welfel (2012, pp. 29 – 57) and will

directly be applied to Jonathan case above.

Step One : Becoming Sensitive to the Moral Dimension of Practice

Meta-analysis by Welfel (2012, p. 32) on previous studies carried out to assess

practitioners sensitivity to moral dimension of the counselling practice revealed a shocking

result – all studies analyzed show a discouraging pattern of moral and ethical insensitivity

among students and practitioners alike in social work and psychology fields. Based on other

studies, Welfel (2012, p.32) suggests three intervention measures to curb this malady of

insensitivity to moral/ethical dimension of practice namely : 1) development of a professional

ethical identity which is achieved through formal education and involvement in graduate

program that sow the seed of culture of commitment to the ethical values of the profession; 2)

self-assessment to ensure that personal motives of becoming a counsellor/entering a

profession in mental health field is in alignment and not in clash with the moral vision of the

profession itself and finally 3) paradigm shift in practitioners’ mental set about ethics, namely

: 1) ethics must no longer be regarded by practitioners as secondary concern in their practice

i.e. secondary concern after clinical practice concern, instead they must regard ethics as the

crux of their practice; finally 2) practitioners must not take ethical issues lightly i.e. regarding

them as highly visible to practitioners when they occur and can be swiftly dealt with, instead

practitioners must be constantly on guard for ethical principle violations and must set up

procedures to ensure that no ethical principle violations will occur.

The current case study shows that Jonathan is sensitive to the ethical dimension of the

profession and the practice, in particular the requirement of confidentiality and privileged

communication between counsellor and client, even a deceased former client. In the last two

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paragraph of the case study, clearly Jonathan has become aware that he is facing an ethical

dilemma, and he will be embarking on an ethical decision making process to settle the

dilemma.

The American Counselling Association’s Code of Ethics (2005) is clear on this.

Standard B.1.c. of the Code titled “Respect for Confidentiality” states that “Counsellors do

not share confidential information without client consent or without sound legal or ethical

justification”.

Step Two : Identify the Relevant Facts, Socio-cultural Context, and Stakeholders

Once Jonathan realizes that a situation involving ethical consideration exists, he or she needs

to organize relevant case information, including the cultural and social context in which the

situation occurs (Welfel, 2012, p. 34).

For relevant facts, Jonathan must realize that currently his client is dead, and he, as

the person who hold his client’s secrets, has become the central figure in several settings i.e.

the employers who wants to know about their employee, the parents who want to know about

their daughter, the police who wants to investigate his client’s death and the secret that only

Jonathan and his dead client know – the HIV positive status of Ms. Jane Doe.

Stakeholder is defined as a person or a group of people who are connected to the

client who may be helped or harmed by a counsellor’s actions (Garcia et al., 2003; Treppa,

1998 cited in Constable, Kreider, Smith and Taylor, 2011, p.3). In the above scenario the

people that will be impacted by Jonathan will be Jonathan himself, the late Ms. Jane Doe (i.e.

her reputation), Ms. Jane Doe’s parents, Mr. John Doe, Ms. Jane Doe’s employer and the

police.

On the socio-cultural context, Jonathan must realize that in the eastern society, the

revealed secret can sometimes become a stigma to the entire family. On the other hand,

Jonathan must also realized that in the eastern society, parents still sway authority over their

unmarried children, hence the insistence on Ms. Jane Doe’s parents to know about her

secrets.

Step Three : Define the Central Issues in the Dilemma and the Available Options

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Step three involves attempts by the counsellor to classify the fundamental ethical issues or the

type of ethical problem involved (Welfel, 2012, p. 35). In this case the main issues have

already been listed above and will be reproduce below :

1) the degree of confidentiality a counsellor owes his client when the safety of

other people is at stake (i.e. Jane Doe confidential information that she has

HIV and whether Jonathan should tell Mr. John Doe); and

2) responsibility of the counsellor to parents of the client; and

3) counsellor’s obligations to third party payers; and

4) whether there exist legal obligation to reveal confidential information to assist

police in their investigation.

5) Post-mortem confidentiality

When the above central issues has been identified, the next step for Jonathan is to

brainstorm the available course of action that he can think of without any filtering/censorship.

Thereafter, they must evaluate and eliminate the unlikely options. Evaluating can be done by

asking “what else might be ethical” and eliminate options that does not fulfil ethical

requirements (Welfel, 2012, p.36). An example of the above would be that for ethical

solution Jonathan might ask the parents of Ms. Jane Doe to wait until Jonathan reveal them in

court when he is required to do so by the court – and thus does not violate any ethical

principle.

Step Four : Refer to Professional Ethical Standards and Relevant Laws and Regulations

Once the counsellor identifies an ethical issues and the available options, the next step

is to refer to professional ethical standard to determine whether the available options is in line

with the Standards, Laws and Regulation in its application. For example, in Jonathan case

above, the ACA indicates that confidentiality is the default fiduciary duty owes by a

practitioner to his client as stated by Standard B.1.c. which provided that “Counsellors do not

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share confidential information without client consent or without sound legal or ethical

justification”. However, there is several exception to this as provided by the Code. Standard

B.2 of the Code list down the exceptions, namely, (1) when disclosure is required to protect

clients or identified others from serious and foreseeable harm or when legal requirements

demand that confidential information must be revealed ; (2) When clients disclose that they

have a disease commonly known to be both communicable and life threatening, counselors

may be justified in disclosing information to identifiable third parties, if they are known to be

at demonstrable and high risk of contracting the disease; (3) When subpoenaed to release

confidential or privileged information without a client’s permission, counsellors, obtain

written, informed consent from the client or take steps to prohibit the disclosure or have it

limited as narrowly as possible due to potential harm to the client or counselling relationship.

The above ethical standards, law and regulation shall be the benchmarks for Jonathan

list of possible options for solutions.

Step Five : Search Out the Relevant Ethics Literature

This step involves consulting professional literature that explores the thinking of other

scholars and practitioners who have faced the same ethical dilemma before and draw

inspirations and obtain new perspective from such literature on how the dilemma can be

settled ethically (Welfel, 2012, p. 41). It is submitted that in the internet era nowadays, this

task will be easy for Jonathan.

Step Six : Apply Fundamental Ethical Principles and Theories to The Situation

Kitchener (1984 cited in Welfel, 2012, p. 43) identified five primary ethical principles

governing human service professions including counselling. In step six, Jonathan should

apply this fundamental ethical principles in reaching his ethical decision. These principles are

:1) respect for autonomy, 2) non-maleficence, 3) beneficence, 4) justice and 4) fidelity

provide counselling professional with a guideline/framework for examining their work with

their clients. Respect for autonomy means respect for a client’s choice, freedom, and dignity;

non-maleficence is the duty to do no harm to clients; beneficence is the responsibility to do

good as a counselor; justice demands fair treatment to the client; and fidelity is the

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counselor’s faithfulness to commitments, honesty, and loyalty (Welfel, 2010 cited in

Constable, Kreider, Smith and Taylor, 2011, p.6 ).

In this regard, Jonathan must ascertain from records and his recollection of what were

his late client’s request regarding the secret i.e. should them secret be secret forever or can be

revealed to selected person after she died. In deciding whether to reveal or not whether it will

harm his late client’s reputation. Justice principle requires Jonathan decision to be fair to all

parties involved and he has to ask himself whether it would be fair, for example, not to reveal

the information to the police when such information is crucial to bring justice to his late

client.

Step Seven : Consult with Supervisors and Respected Colleagues to obtain Alternative

Perspectives

Standard C.2.e. of the ACA Code, entitled “Consultation on Ethical Obligations”

provides that “Counselors (must) take reasonable steps to consult with other counsellors or

related professionals when they have questions regarding their ethical obligations or

professional practice”. Consultation with supervisors and respected colleague gives the

counsellors concerned an objective perspective (Constable, Kreider, Smith and Taylor, 2011,

p.7). As such. Jonathan should confer with his respected fellow counsellors and ask their

opinion on how best to ethically settle his dilemma.

Step Eight : Deliberation and Decision Making

In this step, after carefully following through Welfel (2012) model, the counsellor

concerned must make decision that is ethical. Recommendation as to what Jonathan shall do

is provided in part 2.3 below.

Step Nine : Inform Appropriate People and Implement the Decision

When Jonathan has firm up his decision, he must then implement and document the

decision, as well as inform his supervisor and client of his decision. A counsellor, such as

Jonathan, must have ethical courage to follow through with his decision even when faced

with resistance. After completing this task, Jonathan will have to document his decision, the

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way the decision was implemented and his rationale for arriving at his decision. This are for

record purposes since his decision may be open to challenge later and he has to defend

himself (Welfel, 2010 cited in Constable, Kreider, Smith and Taylor, 2011, p.8).

Step Ten : Reflect on the Actions Taken

Step 10 is done after the decision is made, implemented and recorded. It is a period

for reflection on the part of the counsellor that allows him to identify ways in which the

process could be improved when the next similar dilemma occurs (Welfel, 2012, p.

55).Confidentiality is one of the basic ethical obligations a counsellor owes his client. A

counsellor, like other professionals such as accountants and doctors need a significant degree

of honesty in revealing information on the part of the clients/patients who seeks their services

in order for them to help such clients/patients effectively. Reciprocally, such clients/patients

request some reassurance that the confidentiality of their personal information will be

safeguarded from unauthorised disclosure to a third party. As societies developed, they have

formulated ethical and legal frameworks governing confidentiality for different profession

and in the counselling profession, the one of the oft-referred one is the ACA Code of Ethics,

2005.

As has been stated above, the ethical guidelines to the principle of confidentiality and

privileged communication are provided for in the ACA Code of Ethics, 2005. The highlights

of the Code has been written by Ponton and Duba (2009) . According to Ponton and Duba

(2009, p. 119), professional ethics can be seen as the implicit and explicit understanding of

the relationship between the profession and society. The relationship can best be understood

as a covenant (contract) between the profession (and its members) and the society (Miller,

1990, cited in Ponton and Duba, 2009,p.119). According to Ponton and Duba (2009, p.119),

The ACA Code of Ethics (ACA, 2005) reflects the counselling profession’s understanding of

the responsibilities inherent in the covenantal relationship between the profession and the

society. Code of ethics has been adopted by various modern professions with the objective of

ensuring common standard and minimize personal strife (Baker, 1999 cited in Ponton and

Duba, 2009, p.119) and guide professionals through the most common pitfalls in practice

(Welfel, 2002 cited in Ponton and Duba, 2009, p.119). The Introduction to each of the eight

sections of the ACA Code of Ethics (ACA, 2005) shows the understanding shared by

professional counsellors of their covenantal relationship and the specific manner in which

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they fulfil the counselling needs of the contemporary society (Ponton and Duba, 2009,

p.119). Specifically, Section B of the ACA Code of Ethics (ACA, 2005) laid down the

common belief that counsellors recognize that “trust is a cornerstone” of their covenantal

relationship with society and that they affirm their responsibility to promote that covenantal

trust through their respect for each client’s personality, culture, and history. The guiding

principles of the Code are clear throughout the section, Whether the issue is related to

confidentiality and boundaries with minors or sharing information with insurance companies,

or even sharing information after a clients death (Ponton and Duba, 2009, p.119).

Counsellors are in constant communication with clients throughout their professional

relationship. The most common privileged given to counselors are dealing with privacy and

confidentiality of information shared by clients. In reference to Section B of ACA Code of

Ethic, counsellor must respect the privacy rights of a client in which the soliciting of client’s

information should be done provided it may beneficial to the counseling process. Meanwhile,

the confidentiality right of a client restricts the counsellor’s privilege to share the client’s

information without his consent and if required, the counselor’s action must be justified

ethically and legally. However, by virtue of ACA Code of Ethic, there are three

circumstances where the confidentiality right is lift-up namely legal requirement, dealing

with fatal and contagious disease and by court order. Despite this guidelines, practitioners

must tread this ground carefully since good and ethical deeds sometimes is not the same as a

legally acceptable deed.

The first ethical issue is regarding whether Jonathan shall maintain confidentiality

when the safety of other people is at stake (i.e. Jane Doe confidential information that she has

HIV and whether Jonathan should tell Mr. John Doe). In dealing with fatal and contagious

disease, according to Corey, Corey and Callanan (2012, p. 261), Standard B.2.b of the ACA

Code of Ethics lay down the guidelines on ethical responsibilities of practitioners who might

deal with HIV positive clients who are unwilling to share their HIV status with their partner.

According to the Standard :

“B.2.b. Contagious, Life-Threatening Diseases

When clients disclose that they have a disease commonly known to be both communicable

and life threatening, counselors may be justified in disclosing information to identifiable third

parties, if they are known to be at demonstrable and high risk of contracting the disease. Prior

to making a disclosure, counselors confirm that there is such a diagnosis and assess the intent

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of clients to inform the third parties about their disease or to engage in any behaviors that

may be harmful to an identifiable third party.”

The second ethical dilemma of Jonathan involves the extent of responsibilities of the

counsellor (Jonathan) to parents of the client. The ACA Code’s guidelines on responsibility

of counsellor towards parents of their clients (Standards B.5) only cover the situations where

their clients are minors or adults who lack the capacity to give voluntary consent to release

the confidential information. This paper submits that in case of adult clients who have the

capacity to give voluntary consent, the parents of such clients have no better rights to know

the confidential information than other third parties outside the privileged relationship of

counsellor-client.

With regard to third-party payers right to confidential information of the payee who is

the counsellor’s client, Standards B.3.d of the ACA Code is very clear on this : Counselors

disclose information to third-party payers only when clients have authorized such disclosure.

With regards to whether there exist legal obligation to reveal confidential information

to assist police in their investigation, there are evidence that in practice, the ethical

requirement of confidentiality means total confidentiality even if by doing so the counsellor

are in violation of law. According to Bond (2010, p.155), counselling professionals have

traditionally taken a strict view of confidentiality and protection of clients’ privacy.

According to him some psychoanalysts have even been threatened with imprisonment (for

which they have prepared themselves) for their refusal to reveal their clients’ confidential

information even after the legal requirements for disclosure have been met. He cited the case

of Anne Hayman, a psychoanalysts who refused to give evidence consisting of confidential

information of her client. Hayman presented her reason for not abiding by the court request

and the court agree with her. According to Hayman (1965, cited in Bond, 2010, p. 155-156) :

“Patients attend us on the implicit understanding that anything they reveal is subject

to a special protection. Unless we explicitly state that this is not so, we are parties to a

tacit agreement, and any betrayal of it only dishonours us. That the agreement may

not be explicit is no excuse”

Even the Standard in ACA Code governing this issue gives not complying with the law’s

request as one ethical option for the professionals. According to Standard B.2.c, titled “Court-

Ordered Disclosure”, when a counsellor is subpoenaed to release confidential or privileged

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information without a client’s permission, the counsellor must obtain written, informed

consent from the client or take steps to prohibit the disclosure or have it limited as narrowly

as possible due to potential harm to the client or counselling relationship (emphasis added).

Another issue in Jonathan case above is post-mortem confidentiality i.e. should the

confidentiality requirement remains even after the death of Jonathan’s client? There is no

guidelines in the ACA for post-mortem confidentiality, but according to Bradley, Hendricks

and Kabell (2011), confidentiality should survive the death of the patient. The writers cited

the case of the psychiatrist, Martin Orne who after the death of his celebrity client, released

the tapes of their sessions to the client’s estate who in turn released the tapes to the deceased

client’s biographer who write the biography based on the tapes. This case caused an uproar

from the profession. For example, Dr. Gaylin, psychiatry professor at Columbia University

and an expert on medical ethics, concluded that Dr. Orne, by his action, has betrayed both his

patient and profession. Dr. Jeremy Lazarus (chair of the Ethics Committee of APA), in

reference to this case stated that ‘‘A patient’s right to confidentiality survives death. Our view

is that only the patient can give consent to the release of records. What the patient’s family

wants does not matter a whit’’ (Stanley, 1991 cited in Bradley, Hendricks and Kabell

(2011)). Despite the various criticisms, Dr. Orne maintained that he had acted with the

permission of Anne Sexton’s estate executor.

2.3 Identification of the most ethical course of action in solving the ethical dilemma

presented in the case study and the rational for the same

After we synthesize the issues faced by Jonathan, they all boil down to the following

issues : whether he should release the confidential information to the party who request them

and in case of Mr. John Doe, whether Jonathan should tell him that Ms. Jane Doe was HIV-

positive during her lifetime. After going through the analysis and the Standards in the Code

of Ethics as well as the literature review, this paper is of the opinion that the most ethical

ways for Jonathan is to NOT divulge any of his client’s (Ms. Jane Doe) secret to any of the

party above. He may ask all the parties concerned to start a legal proceeding against him to

obtain the confidential information that they want. Based on literature, duty to keep

confidential information released by the client survived the client’s death. Standard B.2.c.

titled “Court-Ordered Disclosure” maintained that “when subpoenaed to release confidential

or privileged information without a client’s permission, counsellors obtain written, informed

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consent from the client or take steps to prohibit the disclosure or have it limited as narrowly

as possible due to potential harm to the client or counselling relationship”. In Jonathan’s case

above his client’s has already died, perhaps the only option for him is to have it (i.e. the

disclosure) to be limited as narrowly as possible due to potential harm to the client reputation

after her death in the event Jonathan is subpoenaed by the court.

Regarding Ms. Jane Doe HIV status, based on Corey, Corey and Callanan (2012, p.

261) above, Jonathan is not obligated to reveal that to Mr. John Doe. Furthermore, it is not

stated whether he himself sees the HIV screening test result. According to Corey, Corey and

Callanan (2012, p. 261), Standard B.2.b of the ACA Codes places the responsibility on the

counsellor for examining a number of issues before arriving at the best ethical decision in a

given case. The Standard holds that counsellors may be justified in disclosing information to

a third party who is at risk, however counsellors are not obligated to take this course of

action. According to Corey, Corey and Callanan (2012, p. 261) this is an example of what is

ethically appropriate may have been legally unacceptable – practitioners may act in ways

they deem to be ethical only to find that they have broken legal standards. As such to protect

himself and to honour his agreement with Ms. Jane Doe, the only option available in this

regard to Jonathan is to keep the confidential information as confidential – even after his

client’s death.

3. Conclusion

As a conclusion, the duty of a counsellor to keep his client’s information confidential

is a sacred duty which continues even after the client’s death. This duty provide

confidentiality even against the client’s family members.Though the Code of Ethics provides

some guidelines in dealing with how a counsellor should dispense this duty, the guidelines is

not exhaustive. As such, reference must be had to professional literature and fellow

counsellors on how to best ethically deal with dilemma such as this. Literature which

provides methodological model to arrive at ethical decision are many, one of them is the ten-

step process by Welfel (2012). Despite the existence of the Code and literature, counsellors

must be careful in discharging this duty of confidentiality since at times, what is ethically

laudable might not be legally permissible. More often than not, the ethical integrity of

counselling professionals are tested when the confidential information in their possession

become the subject of clamouring requests by third parties not privy to the counsellor-client

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relationship. In such an instance, this paper submit that counsellors must be reminded why

the clients reveal confidential to them – because of their (the counsellors) willingness to keep

them as confidential no matter what it takes.

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REFERENCES

Bradley, L.J., Hendricks, B. & Kabell, D.R. (2011). Postmortem Confidentiality: An Ethical

Issue. The Family Journal: Counseling and Therapy for Couples and Families.

Retrieved from www.educ.ttu.edu/...and.../Postmortem%20Confidentiality.pdf

Bond, T. (2010). Standards and Ethics for Counselling in Action. London : SAGE

Publications Ltd.

Constable, E. G., Kreider, T. B., Smith, T. F., & Taylor, Z. R. (2011). The confidentiality of a

confession: A counseling intern’s ethical dilemma. Retrieved from

http://counselingoutfitters.com/ vistas/vistas11/Article_37.pdf

Corey, G., Corey, M.S. & Callanan, P. (2011). Issues and ethics in the helping professions.

Belmont CA : Brooks/Cole Cengage Learning

Ponton, R.F. & Duba, J.D. (2009). The ACA Code of Ethics: Articulating Counseling’s

Professional Covenant. Retrieved from 140.130.171.113/files/list/.../98 新生閱讀資

料(吳芝儀老師)-2.pdf

Welfel, E.R. (2012). Ethics in Counselling and Psychotherapy. Belmont CA : Brooks/Cole

Cengage Learning

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