Specialty focus: Psychology – treating children

From time to time, Casebook focuses on issues pertinent to particular specialties. Here, attorney Stephanie Esterhuyse looks at the confidentiality issues facing psychologists who are treating children

There can be no doubt that all psychologists have a duty of confidentiality in relation to all information disclosed to them during the course of therapy. Confidentiality is also the cornerstone of the trust between therapist and patient. Having said this, a patient’s right to confidentiality is not absolute, as circumstances may arise where a psychologist may lawfully or alternatively be obliged to disclose confidential information.

The law

Regulation 27(1) of the Rules of Conduct Pertaining Specifically to the Profession of Psychology (as set out in Annexure 12 of the Ethical Rules of Conduct for Practitioners Registered under the Health Professions Act and published inGovernment Gazette No. 29079 of 4 August 2006), sets out certain prescribed circumstances when a psychologist may disclose confidential information:

“A psychologist may disclose confidential information in the following circumstances:

(a) with the permission of the client concerned; 
(b) when permitted by law to do so for legitimate purpose, such as providing a client with the professional services required; 
(c) to appropriate professionals and then for strictly professional purposes only; 
(d) to protect a client or other persons from harm; or 
(e) to obtain payment for a psychological service, in which instance disclosure is limited to the minimum necessary to achieve that purpose.”

In terms of Regulation 27(2), a psychologist may also disclose confidential information when required to do so by a court of law.

Regulation 30 then deals with two scenarios where a psychologist may be compelled to release confidential information, and reads as follows:

“A psychologist shall release confidential information when ordered to do so by a court of law or when required to do so by law or when authorised to do so in writing by the client concerned or the parent or legal guardian of the minor client.”

In practice

The question to be posed is in relation to the second scenario, where a psychologist receives written authorisation from the child’s parent for the release of confidential information disclosed by the child during the course of therapy. Must the information be disclosed? Can the psychologist refuse to disclose the information?

These questions were recently debated in a matter before the HPCSA.

Mr F had initially telephoned Ms V with a request for information. This was then followed by a letter from his attorney. Ms V addressed a letter to Mr F’s attorney in reply and she indicated that the information requested was confidential and, as she did not have the child’s consent to the disclosure thereof, she was unable to give him the information requested.

In her consideration as to whether the information should be disclosed to the child’s father, Ms V also had regard to the paramouncy rule – in terms of which she was of the opinion that it was not in the child’s best interest to disclose any information.

The matter was then considered by the Professional Board of Psychology’s Committee of Preliminary Inquiry, which is a deliberating body comprised of psychologists. In their opinion, Ms V had acted unprofessionally in as far as she had failed to provide Mr F with the information requested. At the hearing of the matter before a Professional Conduct Committee, which consists of three psychologists, Ms V was then found guilty of unprofessional conduct.

The matter was then heard by an Appeal Committee of the HPCSA. This Committee comprised a lawyer as chairperson, two psychologists and a community representative. The judgment of the Professional Conduct Committee was set aside and Ms V was found not guilty of unprofessional conduct. It is this judgment handed down by the Appeal Committee that provides us clarity in relation to the disclosure to a parent of confidential information in relation to a child/minor.

Whilst the Appeal Committee in its judgment did not deal specifically with Regulation 30, it clarified a psychologist’s duties when confronted with a request from a parent for information disclosed during the course of therapy. The Appeal Committee in its judgment criticised the Professional Conduct Committee for failing to appreciate the importance, implications and the effect of the paramouncy rule.

The Appeal Committee went on to point out that the paramouncy rule was not only contained in the Rules of Conduct pertaining specifically to the profession of psychology, but also in the Children’s Act (Act 38 of 2005); and most importantly it is also enshrined in the Bill of Rights (Chapter 2 of the Constitution of the Republic of South Africa, Act 108 of 1996). Section 28(2) reads as follows:

“A child’s best interests are of paramount importance in any matter concerning a child.”

The Professional Conduct Committee had therefore erred in rejecting Ms V’s evidence that she had acted in the child’s best interests in discharge of her ethical duty to the child.

The Appeal Committee also criticised the Professional Conduct Committee for failing to accept the evidence of the expert clinical psychologist called by Ms V in her defence of the charge against her. He had testified that the Rules of Conduct are there to protect and promote the best interests of a child and that, in a situation of risk, a psychologist should err on the side of caution to protect a child.

Regulation 30 must accordingly be read within the context of the Rules of Conduct Pertaining Specifically to the Profession of Psychology, the Children’s Act and the Constitution of the Republic of South Africa. In doing so, the application of Rule 30 will not result in a child’s right to confidentiality being undermined.

Therefore, on a critical analysis of the Rules of Conduct Pertaining Specifically to the Profession of Psychologists, it could not have been the intention of its authors to give a parent the right to information disclosed during the course of therapy; but rather to provide for the lawful disclosure of confidential information by a psychologist to a third party. An example would be where the psychologist obtains the written authorisation from the parent to discuss information disclosed during the course of therapy with another therapist/healthcare professional.

Stephanie Esterhuyse is a director at Bowman Gilfillan, Cape Town