Wednesday, May 16, 2012

Ethical Issues: Is It Okay To Spy On A Client?

To what length should psychologists go in
gathering information about their clients?
I recently finished work on a case where I determined an individual was malingering (pretending to have mental and cognitive problems for the purpose of getting into less legal trouble). This defendant's case was complicated, but at first, it appeared that he was being genuine. He seemed to have bona fide mental problems.

The first clue I received that he was lying came from the prosecuting attorney. He called me one day and asked if I had seen the surveillance videos. I had no idea what the attorney was talking about. He explained to me that part of the defendant's charges involved defrauding an insurance company by saying he was more mentally and physically impaired than he actually was. The attorney assured me that the videos would help in my evaluation.

Once I know evidence exists that may or may not be helpful, I cannot ignore it. So, I asked him to send me the videos to review. Sure enough, it was very clear to even the most untrained observer that this guy was faking it. There were videos of him walking normally into a medical building and then transforming himself into a completely disabled individual who could barely navigate on his own and who needed a walker to move. He would finish his doctor's appointment, hobble out of the door, and transform himself back into a normal person and drive away. There was six hours of video documenting scenarios similar to the one I just described.

As a result of that obvious deception, I gave the defendant a number of malingering tests and determined that he was, in fact, lying to me. I don't know if he has mental or cognitive problems, but I do know that he is not as impaired as he tried to convince me he was.

Here is the catch--the defendant did not know he was being videotaped. The insurance company had him under surveillance for months while they were building their case to bring to the police. It was perfectly legal for the insurance company to do that, and once I knew the videos existed, I needed to use them to inform my opinion about the defendant. But, it is generally seen as highly unethical to evaluate clients for the purposes of a psychological assessment without their informed consent.

The ethical issues at play are Autonomy and Nonmaleficence. I will go through them one at a time:

Autonomy: This ethical principle dictates that psychologists give clients the freedom to make fully informed, autonomous decisions about their care. It is important to explain to clients what their treatment or evaluation will be like, how it will be used, and who has access to the information, among other issues. it is only after clients have all of the important information that they can decide whether or not they want to participate. If I were to hire a private investigator to follow my clients as part of my evaluation, they would not be able to make a fully informed decision to engage in the evaluation--it is quite likely they would refuse to participate if they knew they were going to be followed.

Nonmaleficence: This is the principle of "do no harm." If all else fails, it is important to minimize the amount of harm that might befall clients as a result of their work with psychologists. It seems to make sense that covertly following clients in order to get them into more legal trouble falls into the "harm" category. Interestingly, one might argue that writing a report saying the client is a malingerer is harmful to the client. The distinction here is that the client's own behavior led to the diagnosis of malingering, so the client was essentially harming himself.

What makes this particular case trickier is that I did not commission the surveillance. I would never, ever do that as part of a psychological evaluation (although it probably would produce interesting results). But, the videos existed, they were produced legally, and the defendant knew they were entered into evidence by the prosecution. For those reasons, I felt the ethical principles of autonomy and nonmaleficence had been covered and I would be remiss if I did not use the videos as part of my overall evaluation of the defendant.

Thanks for reading-- Max Wachtel, Ph.D.


Very interesting. Thanks for explaining the legal ramifications of this scenario.

It makes me wonder about where the line is drawn legally in terms of what is considered spying. There have been occasions on which I was tempted to google a client, for example. I never have, because it just doesn't seem right to me, in a way that I find hard to articulate. But it has to do with it being important for my clients to decide for themselves what I know about them, and don't know.

Thanks for the comment, Peg. In the legal and ethical issues classes I teach, we talk about googling clients. It does feel a bit like spying, doesn't it? But, it also seems like most people know that the information that is on the internet about them is readily available to the rest of the world. It's a tough call.

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