By Ed Zuckerman, PhD
We have all heard the word “fiduciary”bandied about during the ongoing mortgage and banking crisis and probably thought it meant something about money. Not true.
In your first day in professional school, when they talked about the helping relationship, you were probably told something like, always put your client’s needs ahead of your own. As soon as you nodded to that you became a fiduciary.
The fiduciary duty then is an obligation to act in the best interests of another party. In any relationship it is imposed upon the stronger (more knowledgeable, richer, smarter, whatever) as a duty to the weaker. Stealing candy from a baby is a breach of this duty and so is insider trading–using non-public information gained because of one’s special position to buy stock for a gain not available to the public. In one sense being a good parent is fulfilling a fiduciary obligation to a child - doing what is in the child’s best long-term interest instead of what is convenient for the parent.
However, stockbrokers only have to offer what is suitable - likely to be beneficial - to the client. They do not have to offer what might be in the clients best interest or what is less profitable for the broker. Similarly, and closer to therapy relationships, a lawyer cannot represent both plaintiff and defendant in a dispute - the lawyer cannot act for two principals and be loyal to both.
A “fiduciary is, in law, a person who is obliged to discharge faithfully a responsibility of trust toward another. Among the common fiduciary relationships are guardian to ward, parent to child, lawyer to client, corporate director to corporation, trustee to trust, and business partner to business partner.”
The Columbia Electronic Encyclopedia Copyright © 2004.
And psychologist to client. A cornerstone of counseling is the moral principle of trust, the client’s belief that the clinician will be honest and tell the whole truth, will not conceal any important relevant information, and will maintain the confidentiality of what is entrusted to the clinician. Underlying all of these is the principle of fiduciary responsibility - to not take advantage of the client for the benefit of the clinician. Although it may not always be apparent, concealing some facts, inadequate documentation, or breaching confidentiality would only be done for some advantage to the clinician. The promise of non-exploitation provides the safety to reveal and explore thoughts, feelings, history, plans or anything else which would have to be concealed out of fear of the consequences to the client.
“In a fiduciary relation one person justifiably reposes confidence, good faith, reliance and trust in another whose aid, advice or protection is sought in some matter. In such a relation good conscience requires one to act at all times for the sole benefit and interests of another, with loyalty to those interests.” Wikipedia, accessed December 17, 2009.
Respect and autonomy
While such efforts are legally and ethically imposed they also can be empowering of the client and clinically useful in the therapy.
The fiduciary principle expands the principles of respect and trustworthiness in specific and helpfully guiding ways. It recognizes the multiple differences between the parties and extends that knowledge into ethical rules. The fiduciary duty requires one to explore, identify and recognize differences. It requires one to weigh and to adapt to these differences; to respect and dignify them.
With respect for the other comes trust by the other in our loyalty to them. The enactment of such trust can be seen in at least two relevant and related ethical responsibilities placed on clinicians:
to ensure fully informed consent about all aspects of the therapeutic relationship both initially and as the relationship evolves and is extended, and
to make every necessary effort to ensure and protect the privacy of the patient’s information.
Multiple relationships
We have an ethical obligation to avoid harmful multiple relationships. But why?
First, because each role has obligations and expectations and these may be in conflict. Multiple roles require choices of actions and the therapist might choose to meet his or her needs or wants before the needs of the client or just be seen by the client as putting his or her needs first. Simply put, a fiduciary may not and does not have a conflict of interests.
A second element is that by foregoing any relationship other than client to therapist we absolutely prevent even accidental breaches of confidentiality. If we are not members of the client’s work setting or deal with relatives of the client we cannot even accidentally reveal information vouchsafed to us with the expectation of confidentiality (that we will not share it with another).
Among our responses can be a withdrawal from one role or the seeking of informed consent to allow limited role overlap. For example, we can inform about the ways a friendship would conflict with therapy and ask for consent to forego the friendship’s benefits. If we fail to resolve he conflicted interests we will breach our fiduciary duty and thus be open to both accusations of ethical failure and the possibilities of malpractice suits.
In our work, preserving privacy, respecting differences, and supporting autonomy are aspects of our fiduciary duty. Carrying out this duty consistently and thoroughly - professionally - enables us to deserve the trust of those who seek our help.
Appreciation to Sam Knapp for his helpful comments.
December 17, 2009 and June 26, 2012.
