Ethical codes in medicine date back to the fifth century BC, yet they received little attention in our medical literature until the 1990s. Greater awareness and interest in ethics can be attributed to a) an increasingly consumer-centered approach to medicine, with its attendant emphasis on patient rights; b) high-technology medical developments that offer choices unheard of in the past and, in turn, introduce the need for health care rationing and decisions about prolonging life; and c) changes in the delivery of health care that alter the physician’s autonomy, impose the role of gatekeeper, and challenge our traditional ethical codes.

Ethical codes are not laws but standards of conduct expected from a professional. They exist to help professionals to reconcile providing service while also earning a living from that service. In medicine, these codes define the norms, duties, and virtues expected in our professional work. As noted by Reiser et al. (1), “Self-conscious reflection on standards of conduct is one of the defining characteristics of a profession.” Ethical codes serve to protect the profession and benefit the patient and society as well. In maintaining the image and standard of conduct of the profession, they enable the patient to establish trust in the physician.

The Hippocratic oath originated in the fifth century BC, but it was not widely applied until the tenth century. It stresses the physician’s power to heal and the need to divest this power from killing. In doing so, as noted by Margaret Mead (2), the code clearly separates the physician from the sorcerer or shaman, who has the power both to harm and to cure. The Hippocratic oath stresses the physician’s obligation to the patient and the duty to keep confidences. It prohibits abortion, euthanasia, and sexual relationships with patients. Dyer (3) notes that the Hippocratic tradition has come under scrutiny by critics who contend that it is anachronistic. Critics argue that it does not deal with the technologic advances in medicine or with problems of cost containment. Many contend that it is too paternalistic and does not adequately address the rights of patients. Dyer (3) recommends that we accept the oath
“symbolically in terms of the intent and the concept of the profession it outlines.”

Psychiatrists today generally follow the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (4). These guidelines provide us with a way of thinking about ethical dilemmas, but they do not necessarily solve them. Often competing ethical principles come in conflict, such as a woman’s right to autonomy and to refuse a Cesarean section versus her physician’s concern for the welfare of her fetus. To understand these ethical guidelines, it is helpful to appreciate the ethical principles that underlie them. The four basic moral principles that guide us in medical research and health care are analyzed in great detail by Beauchamp and Childress (5) and are briefly summarized here. Autonomy comes from the Greek words for “self” and “rule” and in medicine refers to the ability to make decisions for oneself without being controlled by others. Autonomy becomes the basis for informed consent and therapeutic privilege. Nonmaleficence is a concept derived from the Latin Primum non nocere (First do no harm), and originally stems from the Hippocratic oath, which states “I will use treatment to help the sick according to my ability and judgment, but I will never use it to injure or wrong them.” The principle of beneficence refers to the obligation to help others to further their legitimate interests and, more specifically, to promote the welfare of the patient. The principle of justice refers to offering fair treatment to all.

A fiduciary relationship is one in which one person receives the trust or confidence of another and is under a duty to act for the benefit of that person. Examples include an attorney–client or broker–client relationship. Trust is the cornerstone of the fiduciary relationship that exists between physician and patient. The physician as fiduciary is expected to act for the benefit of the patient and not exploit that relationship for personal gain. Simon (6) reminds us that the psychiatrist’s main source of gratification should arise from the psychotherapeutic process, and his or her only material reward is payment for service.

Trust is essential to both evaluation and treatment. Without trust, patients would be reluctant to divulge the intimate details about their lives that are often necessary to arrive at diagnoses and embark on treatment. The fiduciary relationship is less clearcut in regard to children. Issues of trust and confidentiality are more complex in child and adolescent psychiatry because we must deal with parents as well as the child. Parents’ rights to know certain information about their child need to be balanced with the child’s interests. Further, the age and cognitive maturity of the child have a bearing on the child’s ability to participate in decisions about treatment or medication, as well as disclosures to others.

Doctor–patient relationships are also defined by boundaries that keep us in our professional role and prevent us from exploiting patients. Boundaries provide a sense of security to both physician and patient. They help us to maintain objectivity and allow us to focus on the patient’s best interest. Boundaries discourage acting out by both patient and physician and foster respect for the patient’s autonomy and dignity. The forces of both transference and countertransference threaten the therapist’s neutrality and, if not recognized and resolved, may erode boundaries and undermine therapy. Straying from one’s usual practices may be a warning sign of boundary violations. Psychiatrists who begin to see patients at unusual locales or times, who waive usual billing procedures, or who start socializing with patients and their families may be on a slippery slope. They need to reflect on that behavior and to consider the consequences, because seemingly benign boundary violations may lead to more serious ethical violations.

The terms confidentiality and privilege are often confused. Privilege, the narrower of the two terms, refers only to the patient’s right to bar disclosure of information obtained during treatment in judicial or quasijudicial proceedings. Confidentiality, in contrast, refers to the disclosure of information learned in treatment to third parties. The physician’s duty to maintain confidentiality is both a legal and an ethical one that derives from the right to privacy under common law and our ethical codes. Appelbaum and Gutheil (7) note that the ethical foundations for confidentiality are twofold. First is the concern that without assurance of confidentiality patients would be reluctant to seek treatment. Second is the argument that, having implied that communications are confidential, mental health professionals must keep their implicit or explicit promise.

Privilege and confidentiality can be waived only by the patient, with certain exceptions. Generally, these exceptions include when the patient is in danger of harming him or herself or others, such as a sexually active patient who is positive for human immunodeficiency virus and who refuses to take precautions or to inform sexual partners, and state laws mandating reporting of child abuse or impaired physicians. However, exceptions continue to grow and now include insurance company audits, which usually call for blanket rather than informed consent to release records, insurance fraud investigations involving either the psychiatrist or the patient (8), and limits to confidentiality under HIPAA regulations.

The psychiatrist may be faced with a moral dilemma when a subpoena demands patient records and their release is not in the best interest of that patient. The psychiatrist’s conscience must guide him or her whether to defy the law or seek to quash the subpoena. For a discussion of the legal ramifications of breach of confidentiality and consent issues, see Chapter 7.3.

Minors, with some exceptions, are not competent to give consent to treatment, to medical research, or for release of medical information, but they may be asked to give their assent in accord with their developmental age. Consent must be obtained from parents or guardians unless state law allows adolescents to consent to treatment or unless they are emancipated. For consent to be informed, parties must know the nature of the condition treated, the risks and benefits of the proposed treatment and their choices, and the risks of no treatment. Further, they should be free to agree or disagree without undue influence. It is advisable to obtain consent in writing for high-risk treatments and for release of records. If parents are separated or divorced, consent must be obtained from the custodial parent. If the child is in a shared custody arrangement, the psychiatrist should attempt to contact the other parent regarding treatment decisions, because joint decision making on medical matters is usually part of shared custody arrangements. If one is in doubt about the terms of parental rights, one can always ask a parent to bring in the divorce decree.

The child and adolescent psychiatrist, perhaps more than the adult psychiatrist, faces many pressures to violate confidentiality owing to all the collateral contacts that arise during
work with children. These include parents, teachers, guidance counselors, other therapists involved with the family, daycare providers, the child’s physician, and sometimes personnel from protective services or other agencies. Even when there is consent for release of information, the psychiatrist must delicately balance how much information a school needs to know about a child’s turbulent family life to help a child while respecting the family’s wish for privacy. The child and adolescent psychiatrist may need to decide when it is necessary to override a child’s plea not to disclose certain information, such as speaking to a teacher, when parents have authorized such communication. The following case illustrates the many levels at which we must weigh decisions about confidentiality.