Breach of Confidentiality:
The legal Implications when You are seeking Therapy
I. The need for confidentiality in therapy
A. Establish trust
B. A patients bill of rights
Thesis: The duty to warn has created an ethical dilemma for psychological professionals.
II. Therapists face a moral problem
B. Requirement by law to breach confidentiality
C. Exceptions for breaching confidentiality
D. Prediction of violence
E. Impact on client
I. The future outlook for therapy
A. Conflicting views between the legal and psychological professions
Breach of Confidentiality:
The legal Implications when You are seeking Therapy
People are afraid to admit to themselves and others that they need to help to resolve
their psychological problems. This is due to the social stigma which society attaches to
people, when they seek assistance from a mental health professional. Consequently it is
very difficult for any person to establish a trusting relationship with their therapist,
because they fear, that the therapist might reveal their most personal information and
emotions to others. Health professionals therefore created the patients bill of rights to
install confidence between clients and therapists.
The patient has a right to every consideration of privacy concerning his own medical care
program. Case discussion, consultation, examination, and treatment are confidential and
should be conducted discreetly. Those not directly involved in his care must have the
permission of the patient to be present. The patient has the right to expect that all
communications and records pertaining to his care should be treated as confidential. (
Edge, 63 )
This bill of rights enables clients to disclose all personal information without fears.
To fully confide in the therapist is essential to the success of the therapy. On the
other hand, the therapist is legally obliged to breach this trust when necessary. The
duty to warn has created an ethical dilemma for psychological professionals.
The duty to warn is based on a court ruling in 1974. Tatiana Tarasoff was killed by
Prosenjit Poddar. Prior to the killing Poddar had told his therapist that he would kill
Tatiana upon her return from Brazil. The psychologist tried to have Poddar committed, but
since the psychiatrist overseeing this case failed to take action, Poddar was never
committed nor was Tarasoff warned about Poddars intentions to kill her. This failure
resulted in Tatianas death. The Supreme Court therefore ruled that the psychologist had a
duty to warn people which could possibly become harmed ( Bourne, 195-196 ).
This policy, to warn endangered people, insures that therapists must breach there
confidentiality for specific reasons only. These few exceptions are:
? Harm Principle:
"When the practitioner can foresee a danger to an individual who is
outside the
patient/provider relationship, potentially caused by the patient, the harm
principle provides the rationale for breaching confidentiality to warn the
vulnerable individual " ( Edge, 63 ).
? "When the client is a potential danger to himself or herself" ( Bourne,487 ).
? "If the client is a criminal defendant and uses insanity as a defense" ( Bourne,
487 ).
? "If the client is underage and the therapist believes that he or she is the victim of
a crime (such as child abuse)" ( Bourne, 487 ).
The breach for a clients insanity defense would have been helpful in deciding a famous
court case in 1843: the McNaghten's case.
McNaghten used the insanity defense, when he was faced with the charge of killing Sir
Robert Peele's private secretary. A jury had to decide, if he was conscious of the act or
if he was temporary insane ( McCarty, 299-300 ). The jury clearly didn't have the
professional training to make a competent decision. How did they establish if McNaghten
knew right from wrong at the time of the crime? Therefore they were incompetent when
deciding that he, indeed, was temporarily insane.
Now these determinations are made by qualified mental health professionals. Nevertheless
other obstacles are still being encountered. In the beginning the law provides clear
guidelines when to breach confidentiality. The Harm Principle is one of the guidelines.
But how can a therapist absolutely determine, that a client presents harm to another
individual? "To say that someone is dangerous is to predict future behavior. The rarer an
event, the harder it is to predict accurately. Hence if dangerousness is defined as
homicide or suicide, both of which are rare events, the prediction of dangerousness will
inevitably involve many unjustified commitments as well as justified ones" ( Alloy, 570
). The therapist must predict the capacity for violence in the client. There are no
guidelines to establish such a diagnose. "... All that is mandated by the opinion is that
the therapist "exercise that reasonable degree of skill, knowledge, and care ordinarily
possessed and exercised by members of [their particular profession] under similar
circumstances... Within the broad range of reasonable practice and treatment in which
professional opinion and judgment may differ, the therapist is free to exercise his or
her own best judgment without liability; proof aided by hindsight, that he or she judged
wrongly is insufficient to establish negligence" ( Annas, 198 ).
The therapist is faced with an immense challenge. He has to rely onto himself or herself
only. Only aided by his or her professional training to evaluate the client and taught
and /or self-learned ethics to depend on. Adding the fact that the clients future rests
on his judgment, the amount of pressure and stress can only be imagined. As if this
predicament isn't already difficult enough for the therapist, more obstructions have to
be conquered to make a qualified determination of the clients dangerousness.
A therapists prediction is like a mathematical equation with many known and unknown
variables. There are four unknown factors involved in the decision-making process:
1. Lack of corrective feedback. When clients become committed to a mental facility,
because they were considered harmful, we cannot discover if this person would constitute
a danger to others if discharged.
2. Differential consequences to the predictor. Wrongfully discharged individuals which
are discovered to be harmful (false negatives) cause extremely negative publicity.
Wrongfully committed harmless individuals (false positives) don't cause that kind of
publicity.
3. Unreliability of the criterion. The only concrete indication for forecasting a clients
violence is a prior record of encountered violence, which might be questionable.
4. Powerlessness of the subject. Until not long ago, wrongfully accused and then
committed individuals had few rights to fight this wrongful decision ( Alloy, 571-572 ).
"All of these factors encourage mental health professionals to err in the direction of
overpredicting dangerousness. Do they in fact do so? Studies of predictions of
dangerousness have yielded far more false positives than false negatives" ( Alloy, 572
).
When a therapist makes an erroneous decision based on these factors, he cannot be held
liable, since he or she cannot know how truthful all evidence represents a clients state
of mind. However should a therapist be punished for making too many incorrect warnings,
because he or she is in constant distress about his or her legal liability? "... and
therefore to protect themselves against liability imposed by a duty to disclose,
therapists are likely to make many warnings" ( Annas, 197-198 ). The dictated
responsibility to protect the public by "blowing the whistle" on their clients can lead a
therapist to view differently how to conduct their therapy sessions with clients. How
non-judgmental can a therapist remain, when ordered by our legal system, to choose the
well-being of the public over his or her clients well-being ? What impact will this have
on the clients behavior?
Gaining and upholding a clients trust is a most difficult task for the therapist.
Especially because a client never completely loses his or her fear that a therapist might
disclose certain or all personal information to a third party. When the client becomes
aware of the fact, that the therapist is legally obligated to disclose certain case
information in order to prosecute or commit the client if necessary, commonly the client
will not seek therapy or abandon current therapy to avoid possible negative consequences.
"These warnings are likely to cause their patients to terminate treatment and possibly
act out their aggressive impulses" ( Annas, 198 ).
Seldomly will distressed individuals regain their mental health without professional
help. Since they do not wish to receive assistance, due to the possibility of legal
repercussions, they often follow a detrimental path. Finding themselves unable to resist
their urges, they act out their aggressiveness. The targeted person gets harmed, or even
worse, killed. Therapists therefore argue that a sharp increase in involuntary
commitments and preventable crimes will be the secondary, long-term result of the imposed
duty to warn.
Conflicting views between the legal and psychological professions have always existed.
This is due to the nature of these opposite professions. The legal community restricts
their views to verifiable, concrete, therefore empirical evidence only. The psychological
community however cannot be that rigid. Mental health professionals deal with facts
(reality), but they also have to deal with their clients emotions, beliefs and irrational
beliefs. Empathy and trustworthiness play an important role when counseling clients.
Courts and mental health professionals have something in common, they both try to protect
the welfare of others. Legal practitioners look out for the well-being of the general
population. This next statement perfectly reflects their view:
Hospitals and the medical sciences, like other public institutions
and professions, are charged with the public interest. Their image of
responsibility in our society makes them prime candidates for con-
verting their moral duties into legal ones. Noblesse Oblige ( Annas, 199 ).
Mental health practitioners however focus on the well-being of the individual. To protect
and serve the general population as commanded by the courts created an ethical dilemma
for psychological professionals. The courts force them to act contradicting to their
professional beliefs and ethics. Therapists reason that when they must serve the public
they cannot successfully treat their clients. Or how can they treat an individual at all,
if the person won't consider entering therapy do to the possibly grim consequences ?
Highly advanced communication devises erode our personal privacy more every day. Now the
court system seems to follow this trend. Therapists are trying to fight these
developments and question the true motives of the court system. More research has to be
conducted to find better alternatives. Maybe this ethical dilemma can be resolved in the
future, maybe more ethical dilemmas will surface. We are all individuals and should be
treated with our own individual interests in mind. Maybe we should indulge in more
economic thinking, to fuse the well-being of the individual with the well-being of the
general population and thereby eliminating the ethical dilemma. Economic theory can
verify, that when individuals act in their own best self-interest, the population as a
whole will benefit from it, too. This economic principle also applies to psychology.
References
Alloy, L. B., Acocella, J., Bootzin, R. R. ( 1996 ) . Abnormal psychology .
USA: McGraw-Hill .
Annas, G. J. ( 1988 ) . Judging medicine . New Jersey: Humana Press .
Bourne, L. E., Jr., Ekstrand, B. R. ( 1985 ) . Psychology: Its principles and meanings
USA: Holt, Rinehart and Winston .
Edge, R. S., Groves, J. R. ( 1994 ) . The ethics of health care . USA: Delmar Publishing
.
McCarty, D. G. ( 1967 ) . Psychology and the law . New Jersey: Prentice-Hall
Breach of Confidentiality:
The legal Implications when You are seeking Therapy
I. The need for confidentiality in therapy
A. Establish trust
B. A patients bill of rights
Thesis: The duty to warn has created an ethical dilemma for psychological professionals.
II. Therapists face a moral problem
B. Requirement by law to breach confidentiality
C. Exceptions for breaching confidentiality
D. Prediction of violence
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