Abnormal
Psychology 204
November 2, 1996
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:
Þ 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 ).
Þ "When the
client is a potential danger to himself or herself" ( Bourne,487 ).
Þ "If the client is a criminal defendant and uses
insanity as a defense" ( Bourne,
487 ).
Þ "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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