Forensic psychology: Part 2: Chapter 1: Background

Information Sharing and Related Ethical and Legal Issues for Psychologists Working in Corrections

by james RP. Ogloff,J.D., Ph.D., R. Psych.^{Footnote 1}

Psychologists who work in correctional settings, and those who work with the Correctional Service of Canada in particular, often find themselves in situations where they have questions about the extent to which they may be required to share with others information they have obtained from inmates (see, for example, Bednar et al., 1991; Pope & Vasquez, 1991). Other related ethical and legal issues may also arise (see, generally, Ogloff, in press). For example, is informed consent required when assessing offenders for correctional purposes? These issues are often complicated and troublesome for the psychologist.

Most psychologists traditionally have received little training in forensic psychology (Otto, Heilbrun & Grisso, 1990; Tomkins & Ogloff, 1990), and many of the ethical issues in forensic settings differ from those in traditional settings (see American Psychological Association, 1992; Committee on Ethical Guidelines for Forensic Psychologists, 1991). Indeed, it was not until the 1992 revision of the American Psychological Association's "Ethical Principles of Psychologists and Code of Conduct" that the unique issues arising in forensic psychology were directly addressed (Ethical Standards 7.01-7.06). Also of interest are the "Specialty Guidelines for Forensic Psychologists" that have been promulgated by the American Psychology Law Society (Committee on Ethical Guidelines for Forensic Psychologists, 1991). Given the unique concerns that arise in correctional settings, it is important to provide some direction to psychologists about the ethical and legal issues regarding information sharing in the Correctional Service of Canada (CSC).

Several goals have been identified as being important in helping offer guidance to psychologists in CSC. These goals, as presented below, will be addressed in this document:

1. To help psychologists develop a general appreciation of some of the ethical issues that relate to information sharing, and to understand their applicability in CSC.
2. To develop guidelines for psychologists to help determine when to report information obtained from an offender in order to protect third parties.
3. To develop guidelines for psychologists with respect to maintaining and sharing information from offenders' psychology files.
4. To develop guidelines for psychologists concerning the sharing of information relevant to correctional planning and risk assessment with case management and administrative personnel, as well as with the National Parole Board.

In order to accomplish the above-stated goals, this article begins with an overview of the primary goal of CSC and the way in which psychologists working within CSC (either as employees or contractors)^{Footnote 2} fit within the goal. Following these prefatory remarks, a discussion of the general ethical principles of psychologists, and their applicability to the correctional setting, is presented. In this discussion, the topics of "who is the client?," limits on the scope of practice, and the psychology/patient relationship (including informed consent, confidentiality, and relationships with clients) are considered.

Next, attention is focused on the rather unique aspects of the duty to disclose information to protect third parties as it relates to the correctional setting. Finally, guidelines for maintaining and sharing information from offenders' psychology files, and guidelines for sharing information relevant to correctional planning and risk assessment, are presented and discussed.

The Corrections and Conditional Release Act (CCRA, 1992, s. 3) sets out the purpose of the Correctional Service of Canada, as follows:

"The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by:

1. carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
2. assisting the rehabilitation of offenders and their reintegration into the community as law abiding citizens through the provision of programs in penitentiaries and in the community."

Furthermore, the primary principle that guides the CSC states "that the protection of society be the paramount consideration in the corrections process" [CCRA, 1992, s. 4(a)]. Taken together, these provisions emphasize the importance of protecting society by incarcerating offenders, ensuring that offenders will not be at risk to others when they are released into the community, and ensuring that prisons operate in a safe and secure manner.

Like all CSC employees and contractors, psychologists share the responsibility for protecting the public and helping maintain a safe correctional environment. Thus, whenever a psychologist obtains any information indicating that an offender may harm himself or herself, or another person, or that the offender may engage in behaviour that jeopardizes the safety and security of the institution, the psychologist has the obligation to share that information with case management, security personnel, and other relevant decision-makers.

By virtue of their professional training and responsibilities, and in order to comply with provincial licensing and regulatory bodies and national professional associations, psychologists are bound by ethical guidelines and rules of conduct. Psychologists who work in correctional facilities must be aware of, and attempt to resolve, possible conflicts that may arise between their ethical obligations and their employment duties.^{Footnote 3}

Information obtained by psychologists that relates to the offender's risk of institutional violence, or violence to him or herself or others upon release, to himself or others, may often be essential to decision makers. While the confidentiality of information obtained from an offender for the purposes of risk assessment may not be ethically mandated, it is protected as personal information and only shared on a need to know basis, in accordance with the Privacy Act.^{Footnote 4}

Finally, as specified in Section 23(2) of the CCRA (1992), an offender has a limited right to access information that has been obtained by CSC regarding him or herself. That section of the CCRA provides that:

Having addressed the general parameters of information sharing within CSC, the discussion turns now to a review of the general ethical principles and their applicability to the correctional setting.

Confidentiality and privilege arise out of the client's common law right to privacy (Keith-Spiegel & Koocher, 1985). The privilege of confidentiality is the right of the client, not of the therapist.^{Footnote 5} Therefore, it is of utmost importance that the therapist clarifies who the client is and ensures that the person being assessed or treated is aware of the therapist's obligations to the client (Monahan, 1980). Examples from the private sector may be helpful in distinguishing who the client is:

1. If a person hires a psychologist to perform psychological services for himself or herself, that person is dearly the client and has a right to the confidentiality that the law and the ethical obligations for psychologists require.
2. If a person applies for a job, however, and as part of the employment screening process is required to visit a psychologist for an interview and employment testing, the employer is the client. In such a case, the employer "owns" the confidentiality, and the psychologist must share the results with the employer. Furthermore, the psychologist does not have an obligation to discuss the person's test results with the person being tested. The psychologist will have an obligation, however, to inform the person of the purpose of the interview and testing, as well as the limits of confidentiality prior to beginning to work with the person.

As the above examples illustrate, the question of who is the client serves as the threshold issue in determining the nature of the psychologist's obligation to the "client" and "examinee" regarding confidentiality.

Psychologists perform two general kinds of services with offenders within the CSC (the relevant information sharing concerns and guidelines vary according to the different services performed.) First, psychologists perform a range of assessments and interventions requested or needed by CSC to establish and reduce an offender's level of risk (risk assessment/intervention). Second, psychologists may provide traditional psychological services to inmates who need mental health assessment or intervention (traditional assessment/intervention). For example, the psychologist may evaluate or treat the offender for a mental health problem that is unrelated to the offender's level of risk, criminal behaviour, or harm to society (e.g., the offender may be depressed). As discussed below, the kinds of services performed by psychologists may help to clarify who the client is in the correctional setting:

1. CSC, and not the inmate, may be correctly construed as the de facto client when the psychologist performs the risk assessment/ intervention role within CSC. Therefore, the psychologist does not owe a strict ethical or legal duty of confidentiality to the inmate. Nonetheless, ethical requirements mandate that the mental health professional "clarify the nature of multiple relationships … [including] the use that will be made of information collected; and, the limits on confidentiality" (Canadian Psychological Association, 1991, Ethical Standard 1.19). Furthermore, as noted above, all information obtained about an inmate by a psychologist at the request of CSC is still protected as personal information by the Privacy Act, and may only be shared on a need to know basis.
2. If the psychologist's contact with the offender involves a more traditional assessment/ intervention situation, the offender may more appropriately be considered the client. However, given the necessity of being vigilant for security and safety risks caused by the offender/client, the degree of confidentiality that the psychologist may extend to the offender will be much more restricted than the degree of confidentiality guaranteed to clients in the community.

As the above information makes dear, the question of who is the client may vary across offenders and situations in prisons. Because the issue of who the client is has serious implications for clarifying subsequent ethical and legal issues, the psychologist must constancy be aware of this question. The intricacies of these matters are revisited later in this article. Guidelines for maintaining and sharing information from offenders' psychology files and information relevant to correctional planning and risk assessment are presented and discussed at the end of the article. Before addressing those matters, however, it is important to highlight some other ethical issues of importance to psychologists working in CSC.

The psychologist is ethically obligated to be professionally competent in any realm in which he or she works. For example, the CPA Code of Ethics for Psychologists (CPA, 1991, Ethical Standard 11.6) provides that, "In adhering to the Principle of Responsible Caring, psychologists would ... offer to carry out (without supervision) only those activities for which they have established their competence to carry them out to the benefit of others" (see also, American Psychological Association, 1992, Ethical Standard 1.04). Psychologists who work in corrections must therefore have professional competence in correctional psychology, generally. Additionally, if the psychologist engages in psychological services that require more specialized training, the psychologist must also demonstrate professional competence in that area of sub-specialty (e.g., assessment and treatment of sexual offenders, neuropsychological assessment and intervention).

Generally speaking, professional competence in an area of specialization may be obtained and demonstrated by a combination of the following factors:

1. education and training (graduate level courses, American Psychological Association (APA) continuing education correspondence courses, continuing education workshops, etc.);
2. supervised experience by a registered psychologist with expertise in the area of specialization; and
3. reading and research in the area of specialization.

Because there is no clear litmus test for determining when, or if, one has attained professional competence in any given area, psychologists must ensure that their work falls within their realm of evidence, as provided for in the codes of ethics.

Psychologists who are employees of, or contractors with CSC must understand that the correctional setting is fundamentally different than the setting in traditional psychological practice. Having said this, it follows that the nature of a psychologist's contact with a client in a correctional setting will likely differ from that of a psychologist in another setting.

For example, in a private setting, it would be unethical for a psychologist to even inform a third party that a particular person was a patient. However, in the correctional setting, such extensive protections concerning confidentiality are unreasonable and impractical.

While it may not be necessary for a psychologist to explicitly inform case management about the specific content of the contact with an offender, it is important to inform case management that the offender is being seen. Indeed, in order to ensure that the institution is operating safely, it is necessary for correctional officers to know the general whereabouts of all inmates.

The doctrine of "volenti non fit injuria", no harm is done to one who consents, is the legal maxim that underlies the informed consent doctrine (Andrews, 1984; Appelbaum, 1984; Ogloff, in press). To meet the requirements of informed consent, clients who enter into treatment (or research) must do so voluntarily, knowingly, and intelligently.

The "voluntariness" requirement demands that offenders not be manipulated or forced (e.g., with duress or powerful incentives) to participate in treatment. It may seem that offenders are being ((coerced" into treatment in prison because offenders may realize the benefits from participating in psychological intervention (e.g., they may be looked upon more favourably by the Parole Board). However, the fact that the offenders may refuse treatment, even though the alternative to treatment may not be attractive, means that the offender is not, strictly speaking, coerced into treatment.

In order to satisfy the "knowing" requirement of the informed consent doctrine, the therapist must make a full disclosure to the offender of the purpose, procedure, risks and benefits, and alternative treatments with their risks and benefits. Consent may be handled by orally explaining the above information to the offender and obtaining his oral consent, or, as is the case in some institutions, the psychologist may use an informed consent form. In addition, the therapist must be sure to understand the offender's own goals and expectations about intervention, to ensure that the offender has a clear understanding of what the treatment will entail, and what he or she may expect from the treatment.

Finally, for the consent to be valid, the offender must have the mental capacity to understand and make an intelligent, informed decision of whether to participate in treatment based on the information provided by the therapist. Making an intelligent decision does not mean that the offender needs to make a "rational" decision, or to make the decision you would make. Instead, it requires that the offender understands the information you have provided and is able to balance the risks and benefits to arrive at a reasoned decision. If the offender does not have the capacity to make an informed assessment or treatment decision, the psychologist must obtain consent from the legal substitute decision maker, prior to beginning to work with the offender.^{Footnote 6}

Under normal circumstances, the psychologist should obtain informed consent from the offender, regardless of the purpose of the contact with the offender. If the offender is not the client, the psychologist is still ethically obligated to inform the offender of the purpose and nature of the contact, ensuring that the offender understands the limits of confidentiality. The psychologist must also obtain the consent or assent of the offender. For example, the psychologist might say:

If the offender consents to the services the psychologist offers, the psychologist may proceed with the assessment. However, if the offender refuses to participate, the psychologist should not proceed, and may share the information about the offender's refusal with appropriate CSC personnel.

If the offender is the client, the psychologist should understand that the normal rules of informed consent apply. The psychologist must make it clear to the offender, however, that unlike traditional settings, any information that may be relevant to the offender's level of risk in the institution or in society will be shared with case management and others. Relevant information may also have to be shared with CSC personnel on a need to know basis, as provided by the Privacy Act.

Confidentiality is the fundamental cornerstone of the therapeutic relationship (Dubey, 1974; Jagim, Witman & Noll, 1978; Otto, Ogloff & Small, 1991; Reynolds, 1976; Siegel, 1979). "Psychologists have a primary obligation to take reasonable precautions to respect the confidentiality rights of those with whom they work or consult, recognizing that confidentiality may be established by law, institutional rules, or professional or scientific relationships" (APA, 1992, Ethical Standard 5.02). Regardless of its importance, empirical evidence suggests that many licensed mental health professionals are poorly informed about the extent and nature of confidentiality and privilege (Otto, Ogloff & Smal1,1991).

As a general rule (DeKraai & Sales, 1982; Dubey, 1974), mental health professionals working in traditional settings must not communicate information about their clients unless:

1. based on professional knowledge, the therapist clearly believes that the client poses an imminent danger to a third party;^{Footnote 8}
2. confidentiality needs to be breached to report a case of child abuse (or other mandated reporting abuse requirement);
3. the client provides informed consent for the release of information; or
4. the client is suing the therapist, or has made an ethics complaint against the therapist and the therapist must rely on confidential information to defend himself or herself. Or, the psychologist must disclose information about the client "to obtain payment for services, in which instance the disclosure is limited to the minimum that is necessary to achieve the purpose' [APA, 1992, Ethical Standard 5.05(a)].

By contrast, in correctional settings, the offender often may not be the actual "client" or "patient." If the offender is not the client, the psychologist owes no duty of confidentiality to that person, but, because of the requirement of informed consent, should make the offender aware that the information obtained is not confidential.

The duties of confidentiality for psychologists seeing a clients at the request of a third party or agency (such as CSC) are starkly different than for those psychologists seeing clients without a third party request. Given these differences, it is important for the psychologist to clarify with every offender, and in every situation, who the client is, the nature of his or her contact with the offender and the limits of confidentiality.

The prohibition against psychologists having sexual relations with clients is broadly construed here, and is mentioned because of its seriousness (for a review of the issues, see Jorgenson et al., 1991). Psychologists are prohibited from engaging in sexual activity with their clients or examinees during evaluation or treatment (CPA, 1991, Ethical Standard 11.26; APA, 1992, Ethical Standard 1.11). Following evaluation or treatment, the psychologist must generally refrain from engaging in sexual activity with the client or examinee for at least two years (APA, 1992), or "for that period of time following therapy during which the power relationship reasonably could be expected to influence the client's personal decision making" (CPA, 1991, Ethical Standard 11.26; see also, Coleman, 1988).

Psychologists also must refrain from engaging in any activity with an offender/client that may be construed as a conflict of interest and that would hamper the psychologists' objectivity in dealing with the offender.

One cannot over-emphasize the importance of protecting third parties in the correctional context. Occasions where it will be necessary to disclose information to warn or protect a third party or society are likely to occur far more frequently in correctional settings than in traditional settings. There is no doubt that, as a result of both their employment (i.e., following the CCRA, 1992), and the CPA ethics code (CPA, 1991, Ethical Standard 11.36), psychologists working in CSC have a duty to report situations where they reasonably believe that an offender will harm another person. Despite this fact, this issue still causes confusion among psychologists. As a result, some time will be spent here discussing the foundations of the ethical duty to protect third parties (the Tarasoff rule; see Appelbaum, 1985; Appelbaum & Meisel, 1986; Fulero, 1988), and its general applicability in Canada (see Birch, 1992).

Undoubtedly, the most famous case name for psychologists is Tarasoff. In this section, I briefly review the facts and holding in Tarasoff. For our purposes, it is sufficient to note that in the final decision, the court found the therapist and hospital liable for failing to protect an identifiable third party (Tatiana Tarasoff) against whom the psychologist's client had made serious threats, holding that: "once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger" (Tarasoff v. University of California, 1976, 551 P.2d at 345).

The court further held that, "the discharge of this duty may require the therapist … to warn the intended victim or others … to notify police, or to take whatever steps are reasonably necessary" (Tarasoff v. University of California, 1976, 551 P.2d at 340).

The Tarasoff doctrine imposes on therapists, who owe a duty of confidentiality to a client, a duty to protect third parties from foreseeable harm by therapists' clients. Indeed, in the Tarasoff case, it was not sufficient for the psychologist to telephone the campus police; instead, he should have called Ms. Tarasoff or her parents to inform them that Ms. Tarasoff may have been in danger.

Because the Tarasoff case was decided by the Supreme Court of California, it only has binding authority in that jurisdiction. ^{Footnote 9} Although no Canadian court has ever created a duty to warn or protect others for psychologists, the Alberta Court of Queen's Bench stated, in dicta, that under some circumstances such a duty might be imposed (Wenden v. Trikka, 1991). Nonetheless, in anticipation of such a possibility, and in recognition of the fact that psychologists do owe some duty to society at large, ethics codes, including those in force in Canada (see CPA, 1991, Ethical Standards 11.36), have made exceptions to the confidentiality requirement to allow for the protection of identifiable third parties who are at risk of harm.

To the extent that Tarasoff places limitations on the client's right to confidentiality (and that right is often in question in correctional settings), there is no question that there is a duty to warn or protect third parties and society. In fact, as stated at the outset, any information the psychologist may obtain regarding an inmate's potential for jeopardizing the safety or security of the institution, or of creating a risk to him or herself or others in society, must be shared with case management and other relevant persons within CSC.

In other situations, when the offender is the client, the client does have a right to confidentiality (that is limited by virtue of being in the correctional system). Therefore, the Tarasoff f issue needs to be more carefully considered, and the duty to warn or protect is likely to be expanded.

The legal test for knowing whether to report information is "whether the [therapist] knew or should have known (in a professional capacity) of the client's dangerousness" (Keith-Spiegel & Koocher, 1985, p. 63). Although not a strict legal rule, this statement is a useful guideline for psychologists generally, and for those who work in CSC, specifically.

As noted at the outset of this article, one of the primary principles of CSC is to protect society from offenders and to ensure the safe operation of the correctional facilities. As a result, any time a psychologist knows, or should know based on his or her training and experience, that an offender will likely harm another offender or person in society, that psychologist has a duty to report that knowledge to case management personnel and other parties involved.

Psychologists, like all persons in society in virtually every jurisdiction in Canada, have a duty to report suspected cases of child abuse.^{Footnote 10} Depending on the jurisdiction in which the psychologist is practising, the child abuse reporting statute may be sufficiently broad to warrant reporting past cases of child abuse or cases where a child may be at risk for being harmed by a known perpetrator. Similarly, if an offender is being released and the psychologist has reasonable grounds to believe that upon his or her release, the offender will place a child at risk of harm, the psychologist has a duty to report that knowledge to the local child protective services.

It may be useful here, to once again differentiate the general roles of psychologists in corrections. Remember, in most situations, the offender is not the client, and all information obtained may be readily shared with CSC and other related agencies (e.g., National Parole Board). However, there are other situations in correctional settings where the offender may properly be construed as the client. As such, the client will have an expectation of, and some limited right to, confidentiality. There is little doubt that rehabilitation and general mental health treatment are important goals within correctional settings. For these interventions to be effective, it may be important to ensure some level of confidentiality in the psychologist-client/offender relationship.

As noted above, where the purpose of the contact with the offender is to help make him or her mentally healthy and not to assess risk or criminality, information should not be shared with others (within the normal constraints of confidentiality in consideration of the unique issues in correctional settings). The psychologist must still warn the offender that there are clear limits to confidentiality. For example, confidentiality will not be maintained if:

1. it is likely that the offender plans to harm a third party (or himself or herself);
2. the psychologist is provided with information that a child may be at risk for harm, or in need of protection; or
3. other information is shared with the psychologist that is significant and relevant to the offender's risk level, both in the institution and in society.

Here, rehabilitation is used to mean changing target behaviour to reduce criminality. Offenders will be unlikely to share personal, sensitive, yet highly significant information with psychologists if they have no promise of confidentiality. Therefore, in the case of rehabilitation, although the offender may not clearly be the client, it may be important to ensure some reasonable level of confidentiality. Nonetheless, if the psychologist learns that the offender is likely to harm someone, that information must be shared with case management personnel, and others on a need to know basis (as required by the Privacy Act).

Generally, the offender has no right to confidentiality regarding information relayed to psychologists during the course of assessments performed for correctional planning and risk assessment.

The psychologist still has an ethical opportunity to inform the offender:

1. of the nature and purpose of the contact with the offender; and
2. that the information obtained will not be kept confidential and will, in fact, be shared with CSC and other decision-makers.

In the course of psychological contact for the purposes of case management or risk assessment, sensitive information may be revealed. Here, the psychologist needs to use caution and discretion if he or she decides not to share particular information with the decision-makers.

While the psychologist may not withhold information that is relevant to the case management or risk assessment process, he or she may wish to keep sensitive information confidential. How will the psychologist know if the information is relevant? This is a very difficult question to answer, but, the psychologist may be held to a professional standard by the courts where, based on his or her professional experience, a reasonable psychologist would, or would not, have believed that the information was relevant to the case management or risk assessment process for the offender.

As discussed throughout this article, given that the correctional system needs to protect society, maintain the safety and security of institutions and rehabilitate and prepare offenders for their reintegration into the community, a number of unique ethical considerations arise. This article has presented an overview of many of those issues, alerting psychologists to some of the pressing concerns regarding information sharing and related ethical issues in the correctional system.

At the outset, the psychologist must determine who the client is for each interaction in which he or she is involved with an offender. As discussed, the psychologist's role in the prison may either fall into the category of risk assessment/intervention or traditional assessment/intervention. In the case of risk assessment/intervention, there is no doubt that the psychologist does not owe a duty of confidentiality to the offender, and must share all relevant information with appropriate CSC personnel (as well as with related agencies, such as the National Parole Board). Even in the case of traditional assessment/intervention situations, where the offender may be correctly construed as the client, the normal duty of confidentiality is considerably limited.

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