Should a psychologist incriminate their patient?

BarcelonaPsychologists know all sorts of details about their patients' lives and personalities, but professional secrecy obliges them to be discreet and not share that information with anyone. But what happens when a patient ends up in the dock or expresses an intention to commit a crime during therapy? In these cases, the law and professional ethics regulate the limits of professional secrecy and when it can become meaningless.

"Confidentiality is the golden rule from a moral and professional ethics standpoint, but also from a legal one," explains Mercè Cartié, vice president of the Ethics Committee of the Official College of Psychologists of Catalonia (COPC). In fact, there is a risk of committing the crime of disclosing secrets if a patient's information is disseminated in violation of professional secrecy. According to Jordi Nieva, professor of procedural law at the University of Barcelona (UB), nothing prevents a psychologist from testifying if a patient goes to trial. Nor is there anything that exempts them from the obligation to report if they detect that a patient has committed a crime or is about to do so. "Faced with a serious crime, there is no possible justification, whether it has already been committed or is imminent," he points out. In fact, the law obliges psychologists to intervene if they can prevent a crime. The obligation to report crimes described as public offenses, such as gender-based violence, extends beyond these professionals and affects all of society, notes Rosa Maria Pla Bel, a court clerk at the Tarragona Provincial Court. In these cases, this obligation takes precedence over professional secrecy.

Exceptions are "those situations in which the legal right to be protected outweighs confidentiality," Cartié indicates. That is to say, each case must be assessed according to whether there is a risk, or whether the patient or the professional is at risk. However, the psychologist warns that "things are never clear-cut" and believes that it is necessary to "come into play deontology, ethics, and the law, and to evaluate based on professional judgment." She gives the example of a pedophile who expresses in therapy that he feels sexual attraction to children, but who has never committed an act of aggression. "It is a very clear risk, but there has been no action. It is necessary to prevent any potential victims and to conduct follow-up," she explains.

Psychologists in court

Most of the time a psychologist testifies in court, it's as an expert witness. When they take on this role, they present a report on the patient they've analyzed, usually the defendant or the victim. But they don't know them personally, and their reports aren't covered by professional confidentiality, Pla explains. What is less common is for a psychologist who has treated a defendant to end up testifying as a witness. In that case, the professional must answer "about the facts, not impressions" or assessments of the patient, Nieva indicates.

In her 25 years of experience as a court clerk, Pla Bel has never encountered a case in which a psychologist refuses to testify, invoking professional confidentiality. A recent example, although not in court but before the Mossos d'Esquadra (Catalan police), is that of Jonathan Andic's psychotherapist. She invoked professional confidentiality when the police questioned her as part of the investigation into the death of her patient's father, Mango founder Isak Andic. Pla Bel, who is also a professor at the Faculty of Law at Rovira i Virgili University (URV), emphasizes that it would be necessary to evaluate in each case whether or not professional secrecy should take precedence. For example, in a case involving a crime or sexual assault, it is necessary to weigh the patient's right to privacy against the right to life or sexual freedom that is at stake in the proceedings. In cases like this, Pla believes that the psychologist should testify, like any other witness, with an obligation to tell the truth. Therefore, she admits that in the case of a serious crime, professional secrecy is likely to end up being "worthless." Nevertheless, Cartié maintains that psychologists must maintain professional secrecy unless the judge waives it to compel them to testify. "Sometimes you are summoned and then the judge doesn't waive it. The judge may determine that the information we can provide is not so essential, or that they already have other evidence," she says. He adds that, even when released from professional secrecy, professionals are still obligated to provide only the information relevant to the case, not all the information they have about the patient.

What if a victim doesn't want to report the abuse?

The vice president of the COPC's Ethics Committee also raises the dilemma these professionals may face if a person tells a therapist they have been the victim of a crime but doesn't want to file a formal complaint. On the one hand, there is the duty to maintain confidentiality. On the other, the obligation to report the crime. But forcing a complaint could cause the victim to abandon therapy, which could be counterproductive, Cartié adds. "The main thing to consider is whether this patient is at risk. Perhaps they need support to be able to file a complaint later," she concludes. There is a difference between a victim who recounts abuse that could continue if a complaint isn't filed, and the case of someone who discloses a sexual assault from years ago in therapy, where there is now no risk of it happening again.