This particular case is also important for several reasons. First, the good news. When confronted with an apparent confidentiality breach, which according to Mulhauser appeared to be unintentional, and an honest mistake but he alleges those responsible did take some steps at damage control and deleted the emails form the archives of their discussion group. Therefore consumer advocacy works or can work. However this case continues to highlight the need for clarification of proper procedures, standards of practice and ethics when it comes to online therapy and or the use of the Internet by professionals for purposes of consultation.
We need to be careful about drawing too many conclusions regarding the fact the APA took no action at this time in this specific case. All the evidence is needed to evaluate their decision and that is not available to outsiders generally.
In general I think it’s fair to say that professional codes of ethics often lag behind technological advances. To date none of the ethical codes ethics of mental health professions specifically mention the matter of discussion group’s listservs. One needs to infer meaning from more general statements. See How Disguised is Disguised Enough: Reasonable to whom? Which attempts to examine what is the meaning of terms like reasonable, disguised and informed consent.
Also ethical codes evolve as complaints and or consumers bring litigations; and as concerned members bring attention to a matter, clarification and elaboration emerges. At the heart of this case is the concept of informed consent. What does it mean to be fully informed? If clients do not have sufficient facts how is truly informed consent possible? If in fact patients are not told or are not aware that they are being discussed in open listservs how do they know if they wish to consent or not? The central question is do they have this right? At this time the likelihood of complaints being lodged are small. However, as more attention is brought to this matter, things can change.
In this case while there are similarities with other situations on online discussions by therapists, it’s important to note that the listserv in question above involved six members. Do numbers matter? On the one hand if a confidentiality breach occurred numbers in theory should not matter. Telling one person patient information that they are not authorized to know or 1000 is still a breach. However the potential for harm increases with the number of people who know. And in this case while only six members according to Mulhauser the group was open to the public so anyone could have had access.
There are other situations reported in this series where the groups or llistservs are reported to be closed. In this case closed means a list owner or moderator must approve someone before admission to the discussion group. However we have discovered that often procedures to insure that the person seeking admission is who they claim to be and a professional are minimal to nonexistent. In all practical terms they are about as open as those that are reported to be open. Additionally with some listservs a Google search of a practitioner’s name can bring up whole posts made to listservs by anyone. So the question of open or closed may be more a matter of semantics
According to Mulhauser in this case (ISMHO Clinical Case Study Group), the revealing of confidential information was admitted to be a mistake.[1] the list owners admitted their error. In other situations list owners make no such admission. They see no problem in their actions and apparently intend to continue to discuss cases online without patient’s consent or if consent is obtained the patient is not given all the information necessary to have the consent be fully informed.
As more attention is drawn to this practice will list owners be held responsible for confidentiality breaches? Will ethics boards in future continue to decline to hear such cases? Will licensing boards rule on the matter? And perhaps most important will civil litigations find such practices to be no problem?
The only thing that is certain is that this case will not be the last.
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