Privacy, The Law & Ethics: When State Dictate Conflicts With Moral Judgement

The conduct of a professional when dealing with clients is governed by many factors. Such factors may include codes of ethics stipulated by professional associations, an individual’s moral framework and the laws that govern the region in which the professional conducts their business.

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In this post, let's explore how differently the issue of privacy is dealt with in different legal jurisdictions in Australia and explore the potential dilemma that arises when ethical and legal frameworks seemingly conflict. Specifically, let's look at the issue of confidentiality; that being the ethical and legal responsibility of, say, a therapist, counselor or doctor as a means by which examples of such professional dilemmas can be explored.

In the 2012 book Life-span human development by Sigelman & Rider, confidentiality is said to be a means by which information is kept between two parties with no disclosure to others. Confidentiality is determined by two frameworks, ethical and legal. Ethics is fundamentally related to moral principles that one abides by. Legality is the framework of rules that is determined by the appropriate governing body along with associated punishments.

Confidentiality is a situation in which sensitive information is treated with a level of respect so as to protect the interests of a particular party. It is important to recognise that the information in question may take many forms and some examples include an individual’s private information such as residential address in paper form or digital.

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Part of the confidentiality process is also making sure that the owner of the information is aware of the information taken, gives consent for any disclosure and understands the limitations of confidentiality. It seems self-evident that a professional practitioner of any kind should be expected to respect a client’s confidentially as stipulated by both ethics and law however there are occasions where conflicts may arise.

The Information Privacy Act of 2009 (http://www.premiers.qld.gov.au/tools/assets/information-privacy-act-2009.pdf) is the piece of legislation that governs the “the fair collection and handling in the public sector environment of personal information” within the state of Queensland, Australia. Some points of interest include the manner by which and the type of personal information that can be obtained.

An example from the act is that a professional may collect only information that is “necessary for 1 or more of its functions” and the collection of information only by “lawful and fair means and not in an unreasonably intrusive way”.

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The act lists seven broad conditions that allow the disclosure of personal information. These include “reasonably believes that the use or disclosure is necessary to lessen or prevent a serious threat to an individual’s life, health, safety or welfare”, “reason to suspect that unlawful activity has been, is being or may be engaged in” and even “the protection of public revenue”.

Conversely, the following information from the Western Australian government speaks to the differences that can be observed in the space in the same country.

The state public sector in Western Australia does not currently have a legislative privacy regime. Various confidentiality provisions cover government agencies and some of the privacy principles are provided for in the Freedom of Information Act 1992 (WA) overseen by the Office of the Information Commissioner (WA).

The Tasmanian Personal Information Protection Act (2004) stipulates similar conditions for the release of personal information (in fact the three examples provided above from the Queensland legislation are identical in the Tasmanian act). There are however differences between the acts. For example under Tasmanian law, there are numerous references to the assignment of unique identifiers to personal information.

A unique number for example must not be assigned to an individual’s data unless certain conditions are met and the unique number assigned by another personal information custodian must not be copied or reused.

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Where dilemmas may appear in confidentiality are when the limitations of confidentiality may appear; such as a court order of a client’s interactions in the counselling sessions. The dilemma accurse as the counsellor’s primary care is for that client but has or may have been given a subpoena. In this case

An example of a possible conflict between ethics and the law could be derived from the prior mentioned condition of information release; specifically for the reason of protection of public revenue. Having to disclose information about a client under law for reasons of financial matters may conflict with a counselor's assessment of their moral obligation to a client’s well-being.

A particular client for example may be experiencing financial hardship and the disclosure of their information to authorities may have the anticipated result of worsening the client’s mental state. In this instance, a counselor may be torn between legal obligations and a desire to only act in the positive interests of their client.

In my opinion, the law is a very poor tool for implementing any sort of moral framework. The very fact that financial protection of the state is listed at all should be an indication of this. As professionals however, workers in fields who deal with regulated data collection need to be aware of the law as it has the power to strip workers of their income and more.

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Have you ever come upon an instance of conflict between the law and what you know to be "right"?