Confidentiality versus the Duty to Warn - Research Paper Example

 Confidentiality versus the Duty to Warn Introduction Various ethical theories and principles are expected in the field of health. These ethical principles are meant to ensure the protection of patient rights and also to guide health professionals in the effective implementation of their duties and obligations. The basic ethical principles which surround the health practice include the principles of self-determination, beneficence, non-maleficence, and justice. Most any ethical issue can be settled through the application of these principles which seek to safeguard the effective protection of patient rights. It is however unavoidable that these ethical principles may come in conflict with each other. The importance of securing the best and most effective resolution to these ethical conflicts is paramount. Some of these conflicts may include conflicts between the patient’s right to confidentiality and the health professional’s duty to warn. This essay shall consider whether or not a health care provider should provide privileged information about their patients, information obtained as part of the therapy session or should that information be withheld as part of the confidentiality agreement. This paper will consider this issue in the light of various incidents where perpetrators have often discussed their intentions with their clinical psychiatrists. This subject has been discussed for many years and will likely persist as a major issue in health ethics. The right of confidentiality of patients as well as the right of the potential victims to know that their life is in danger is the major consideration in these instances. The other side of the issue relates to the ethical dilemma the situation causes to the health providers attending to the needs of the patient. This essay will provide a detailed and fair assessment of this issue, utilizing supporting evidence on either side and establish a clear and logical stand on the subject matter. Body In considering the conflict between the patient’s right to confidentiality and the health professional’s duty to warn potential victims, my personal position is on upholding the duty to warn potential victims. This position is supported by various ethical and legal considerations which ultimately seek to benefit not just the potential victims, but the perpetrator as well (Tribbensee and Claiborn, 2003). In the field of clinical psychology, clinicians or psychiatrists have a legally-mandated duty to warn possible victims. For clinicians who have reasonable grounds to indicate that their client may harm themselves or other individuals, they have the duty to warn such potential victims (Tribbensee and Claiborn, 2003). This duty is considered an exception to the right of confidentiality which patients have in relation to their symptoms, their health circumstances, and anything they might reveal to the clinician. The American Psychological Association Ethical Code of Conduct (2001) indicates that this duty to warn is specifically indicated in the guidelines for the revelation of confidential data without the consent of the patient. In effect, psychologists and psychiatrists can disclose confidential data without the consent of the client where they are legally mandated to do so or for valid purposes, including the protection of clients, clinicians, and other individuals from harm (Simon, 2001). In instances where serious harm may be caused by a client on any individual, the clinician can therefore violate the patient’s confidentiality and warn the identified victim about the risk on his/her life. The imposition of this duty varies for different states and different countries; however, the general rule on the protection of the general public from harm allows for the breach of the right to confidentiality (Simon, 2001). Moreover, aside from the potential victim, law enforcement authorities can also be informed about the danger which the client will likely pose on himself, a named victim, or the public in general. The ultimate goal in this case is to prevent such danger and to ensure that the necessary measures to prevent harm would be in place (Simon, 2001). The duty to warn is historically based on the Tarasoff v. Regents of the University of California case with decisions by the California Supreme Court in 1974 and 1976 setting a strong precedent for other courts and for the general clinical practice (Everstine, et.al., 2003). This case was filed by the Tarasoff family against the Regents of the University of California after their daughter Tatiana Tarasoff was murdered by her former boyfriend Prosenjit Poddar. Poddar received psychological assistance from the university psychologist and in one of his sessions he said that he wanted to kill Tarasoff (Everstine, et.al., 2003). The psychologist then informed the campus police of the danger which Poddar posed to Tarasoff as well as other individuals. Poddar was briefly detained and later released when the authorities deemed him mentally stable. After which, he went on to kill Tarasoff. After the incident, the director of the department of psychiatry at the Cowell Hospital asked for the records of Poddar to be destroyed. Tarasoff was never warned about the risk to herself (Beck, 1985). Shortly after Tatiana was killed, her parents filed charges against the university and individuals involved in the case for their failure to warn Tatiana about the risk which Poddar posed. The Supreme Court ruled in favor of the Tarasoffs, and they ruled that the right to confidentiality cannot be considered over and above the safety of society and specific individuals (Beck, 1985). The court also indicated that the clinician’s duty to the wider community places significant limitations on the clinician’s loyalty to his client. As expected, the above decision was met with much protest and issue. Those who opposed the decision indicated that the decision of the Supreme Court curtails the basis of effective therapy and progress, especially with clients expecting the protection of their right to confidentiality (Applebaum, 1985). These oppositionists argue that this right to confidentiality should be upheld at all times and under any condition because protecting such right will help ensure that the client would continue to seek psychiatric care (Morrison, 2009); moreover, they point out that with effective psychiatric help, the intended violence may be averted altogether. These oppositionists also argue that where there are exceptions to confidentiality, the client may be reluctant to develop a trusting relationship with the clinician (Kermani and Drob, 1987). In the end, the psychiatric services may not be effectively ensured for clients who do not trust their clinicians. Without the total assurance of confidentiality, the client would be unlikely to reveal his private thoughts and issues to the psychiatrist. How would such dangerous thoughts and feelings be detected by the clinician? This is a valid point expressed by opponents to the duty to warn (Kermani and Drob, 1987). However, regardless of the valid points, the risk to the lives of other individuals is still present. A clinician cannot sit on that knowledge and continue to hope that he would effectively apply psychiatric therapies, enough to sway the clients from their dangerous purposes. The duty to warn is also an issue in the case of HIV/AIDS patients, where clients who are sexually promiscuous refuse to practice safe sex, persist in sharing needles, and continue to put the health of their sexual partners at risk (Corey, Corey, and Callanan, 2010). There is a strong possibility that his continued lack of care for the sexual health of his partners would likely lead to their affliction with HIV/AIDS. Under these circumstances, the clinician has a duty to warn the potential victims, especially the wife, girlfriends and other sexual partners of the risk they may be or have been exposed to (Corey, et.al., 2010). The act of breaching confidentiality must however include various tasks on the part of the clinician (Greenberg, 1984). Clinicians breaching the confidentiality must try their best to inform the clients about the fact that they may be obligated by law to break confidentiality especially if the information they would be given signify a danger to other people (Greenberg, 1984). Clinicians are also obligated to try to get the clients to not continue with their plans to cause harm. In relation to HIV/AIDS clients, clinicians may also indicate that they are obligated to inform their sexual partners about their disease; in other words, the clients should be encouraged to inform their partners of their disease in order to ensure that their partners would be informed about the risks they have been exposed to and the necessary processes of disease prevention, diagnosis, or management they may need to undertake (Greenberg, 1984). Ensuring the benefit due to the client is the justification for the duty to warn. In the clinician’s efforts to benefit clients, no harm must also be caused (Beauchamp and Childress, 1983). Clinicians must be able to evaluate the antecedents as well as possible future outcomes, and bear in mind two concepts in relation to diseases or disorders, first, that of doing good, and second, that of doing no harm (Beauchamp and Childress, 1983). This is the very basis of my support for the duty to warn. As individuals, it is possible to misjudge, to act in error, or even to misdirect or deny certain actions (Beauchamp and Childress, 1983). Only as individuals are placed under the scrutiny and inspection of others can such individuals admit their doubts and concerns. Laws have evolved over time, especially in relation to definitive purposes in the protection of society from harm and acting for the benefit of others. The Tarasoff (1974) case indicates that duty “is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection”. This case evaluated the more significant and future implications of the duty to warn. It also discusses the importance of performing obligations based on a person’s ability and his judgment (Goldman and Jacob, 1991). The process of decision-making on the part of the clinician is therefore emphasized in the Tarasoff case. Other cases that followed also pointed out that in making the ultimate decisions on any case, these clinicians must apply good faith which is supported by relevant elements (Ferris, et.al., 1998). Such evaluation must also consider all relevant factors in the case. For clinicians meeting such criteria they would not likely be held liable for judgments made in good faith, judgments which may, in some instances include the duty to warn (Morgenthal, 2006). Clinicians have the duty to first, do no harm. This is part of their Hippocratic Oath as clinicians and practitioners. The goal of doing ‘good’ for clients and not causing them harm underlies the common desire of helping individuals adjust and function efficiently (Goldman and Jacob, 1991). The likely issues on doing no harm involve confidentiality and client protection. Ethical dilemmas are often apparent, and this is significant when counselors have to do the right thing for most everyone involved. The health plan must therefore cause the least harm to the individuals involved (Goldman and Jacob, 1991). It must also be able to gain some form of support from the other ethical principles. It is not however possible to gain the support of all the other ethical principles, however, the principles which are most crucial to the case must be utilized. They also must have significant ethical support for being chosen over and above other principles (Goldman and Jacob, 1991). In ensuring a plan of care which does not cause harm or which causes the least harm, the clinician must consider their personal feelings on the situation; informing the client himself about their legal restrictions; informing the client of the clinician’s duties; assisting the client in hurdling through his mental struggles; clinical and ethical issues; and documentation (Ferris, et.al., 1998). The clinician is therefore required to establish a balanced approach to the dilemma of doing no harm to the client and that of protecting others while applying a specific assessment of the above-mentioned elements (Ferris, et.al., 1998). The Tarasoff case has applied a balancing approach in emphasizing the importance of foreseeing possible harm as a means of establishing legal obligations among the parties involved. The Ohio Supreme Court also expressed that the clinicians need to evaluate: the ability to control and manage patients with violent tendencies; public safety; issues predicting violent behavior; placing patients in unrestrictive environments while preventing unnecessary legal confinements; and ensuring confidences based on social policy issues (Morgenthal, 2006). Under these conditions, the decision of warning other people of danger imposed must be upheld. The primary objective during therapy is to ensure ‘good’ to clients. In order to secure such ‘good,’ it is important for clinicians to secure goals for therapy, goals which are SMART (specific, measurable, action-oriented, realistic, and time-bound) (Morgenthal, 2006). This plan must be based on the client’s improvement and the fulfillment of the goals. Applying the duty to warn ensures that the client would receive effective therapy, and in the process be deterred from pushing through with his plans to do harm (Morgenthal, 2006). Threats of clients to cause harm can be stressful situations for clinicians who may be aware that they now carry an obligation to prevent and protect their client from self-harm and from causing harm to other individuals (Morrison, 2006). Since the 1970s, the duty of care has been secured by the Tarasoff case and the issue of suicide is a significant discussion which has had various duties and tools, especially where clients have threatened other individuals. Interventions, emergency orders, and the possibility of breaching confidentiality as a means of resolving the situation are possible considerations for the issue (Goldman and Jacob, 1991). Professionals and clinicians may encounter situations like: ongoing dangerous scenarios like family violence; antisocial clients involved in criminal acts; clients without history of violence expressing violent intent; clients with violent history manifesting psychosis; clients engaging in violent acts; clients threatening harm to a class or a group of people; and other similar incidents which pose real and potential threats (Morgenthal, 2006). Where these situations exist, the duty to warn is one of the most important options they have to protect the general public. Even before the Tarasoff case firmly legalized the duty to protect, clinicians have already acknowledged that their duty to protect the greater population is greater than their duty to protect their client (Morgenthal, 2006). Most individuals would even admit that the moral duty to protect and preserve life is more significant than the client’s right to privacy. This situation however represents a significant issue which seems to dominate the ethical processes for psychiatrists and other clinicians. In order to effectively manage the situation, it is possible to ensure that the more significant elements of the issue are considered (Ferris, et.al., 1998). First, the overall dangerousness of the client must be evaluated; second, the urgency of the issue or situation must also be considered; and finally, the possible choices for management must be evaluated (Siegel, 1979). The duty to warn actually has a very small window of application because of the above considerations; nevertheless the possibility of having all three elements in any given situation would likely validate the decision to breach confidentiality. The urgency of the situation is also an important element which would make a significant impact on the clinician’s decision. Where the danger is real and imminent, the action must also be immediate and what little time given to act may only allow for the notification of potential victims or of authorities (Truscott and Evans, 2001). There may be no time to protect the client’s confidentiality and implement therapeutic practices hoping to deter the client from causing harm. Nevertheless, where confronted with the actual threat or with the client’s anger or harm risk, it is important for the clinician to be equipped with tools for defusing such anger (Truscott and Evans, 2001). Professional skills and tools should also be directed towards dissuading clients to push through with violent scenarios, and possibly discuss the situation with other clinicians or with the client’s family. Family members in the end may be the key to resolving the situation or defusing the violence (Truscott and Evans, 2001). It is also important to notify police officers where clients are chemically dependent and where they may pose a danger to others and to themselves. Under these conditions, the danger is very high and the risk is very much real because chemical dependency has been known to compromise judgment, and to further increase the risk of harm to other people (Truscott and Evans, 2001). These are considerations which in the end are very much real for clinicians. Continuing to protect the client’s confidentiality in the face of all these risks is a reckless and unfounded decision, one which countermands the basic tenets of medicine, that of “doing no harm.” The recent Colorado shootings carried out by James Holmes put the Tarasoff case and this duty to warn back in the spotlight. Apparently, before the attack, James Holmes sent a notebook to a University of Colorado psychiatrist which included details on how he was going to kill people. The parcel however was not opened by the psychiatrist until after the shooting. In general, the Tarasoff case rules that the policy to protect the confidential nature of the patient and psychotherapist relation must not be upheld over and above the duty of the psychiatrist to prevent danger to other people. In effect, “the protective privilege ends where the public peril begins” (Greenfield, 2012). The elements of the duty to warn however are not completely contained in the Colorado case, especially since the notebook was not received by the psychiatrist before the actual shooting. Even granting that the notebook would have been received by the psychiatrist before the shooting, there were no specific individuals to warn (Greenfield, 2012). The notebook did not specify who James Holmes intended to harm. This makes the application of the duty to warn difficult. The decision in the Tarasoff case indicates that the duty to warn exists where the psychiatrist or psychologist is able to determine, based on the standards of his profession, that a patient poses a serious threat of violence to another individual (Greenfield, 2012). The subsequent court rulings refused to extend the protection of the duty to warn to third persons who were not identified as victims. In the case of Holmes, the notebooks did not name any specific individuals he wanted to target. The psychiatrist hardly even knew of the existence of the notebooks. The psychiatrist therefore did not have sufficient data to evaluate the situation or the possible harm that Holmes posed to society (Greenfield, 2012). Without any knowledge on the patient’s possible actions, there is no legal duty on the part of the psychiatrist to warn. It is however natural to assume that Holmes may have mentioned to his psychiatrist about any plans he may have had. The notebooks may not be the only indication of the client’s plans, and the determination must be based on the psychiatrist’s observations and on what the client chose to share and express to his psychiatrist (Greenfield, 2012). The Tarasoff requires specificity before the rule of confidentiality can be broken; in other words, the conditions must be specific enough and must bring sufficient benefit to the intended victims before it can be broken (Morrison, 2006). In instances where the threat of harm is specific enough and can be sufficiently predicted (who, what, when, how, and where the harm would be inflicted), it would be irresponsible not to warn intended victims or authorities of the harm. Even as concerns for confidentiality are very much significant, these concerns can be discarded where there is an objective and well-founded belief that the patient will commit murder against an identified individual. In applying these considerations to the Colorado shooting, the circumstances do not sufficiently warrant the application of the duty to warn. The right of confidentiality is one of the most crucial rights of patients (Morrison, 2006). It is a right which creates and provides a safe environment for the client, one where he can freely share his thoughts and feelings without fears of having such thoughts and feelings be revealed to other individuals (Morrison, 2006). Where patients are not protected in this right, they may be reluctant to share their thoughts and feelings to their psychiatrist. This can prove problematic for the psychiatrist who usually assesses feelings and thoughts in order to evaluate the patient’s mental health (Morrison, 2006). Protecting such confidentiality right is therefore an important element in the health care practice. This right is however not absolute. Where the patient’s feelings or thoughts present risks to specific individuals, then the protection which stems from the patient’s right to confidentiality can no longer be accorded (Truscott and Goodkey, 2003). The safety of the individual threatened must be protected because the right of confidentiality is not meant to protect or aid the commission of criminal acts. Being privy to knowledge of harm intended against a specific individual or individuals and not raising an alarm can be equated as an enabling act (Truscott and Goodkey, 2003). The duty to warn is meant to prevent such harm and to a certain extent is also meant to save the client from carrying out his harmful plans. Under these conditions, the need to provide support for the duty to warn over the right of confidentiality must be upheld where clearly applicable. Conclusion There are various ethical expectations which have to be protected in the health practice. These ethical policies are meant to protect public welfare and are meant to ensure that the rights of patients are protected. In instances where the right of confidentiality conflicts with the duty to warn, the duty to warn must be upheld. This expectation is present under circumstances where significant risks to the life of a specific individual are apparent and the psychiatrist is privy to information which would clearly indicate that his client means to carry out such harm. The psychiatrist therefore also has the duty to prevent such harm by making attempts to dissuade the client in his plans. Informing the client that there are limits to the confidential nature of the communication is also a prudent course of action for the psychiatrist, a means of tempering the possible violation of the patient’s right to confidentiality. The right to confidentiality is negated by the client’s plans to cause harm and where the psychiatrist finds suitable conditions for the violation of the client’s right to confidentiality, such right can be legally breached. The principles and conditions laid out by the Tarasoff case provide sufficient guidelines for the duty to warn. I support the duty to warn as necessary element of the breach of confidentiality because there are greater concerns of public welfare and safety which must be protected over and above any individual right, the breach of which does not pose any immediate and mortal danger to the client. References American Psychological Association. (2001). American Psychological Association Ethical Principles of Psychologists and Code of Conduct. Retrieved from http://www.apa.org/ethics/code/index.aspx Applebaum, P. (1985). Tarasoff and the clinician: problems in fulfilling the duty to protect. Am J Psychiatry, 142(4):425-9. Beauchamp, T. & Childress, J. (1983). Professional/patient relationships. In: Principles of biomedical ethics. New York: Oxford University Press. Beck, J. (1985). Violent patients and the Tarasoff duty in private psychiatric practice. J Psychiatry Law, 13:361-76. Corey, G., Corey, M. & Callanan, P. (2010). Issues and ethics in the helping professions. California: Cengage Learning. Everstine, L., Everstine, D. S., Heymann, G. M., True, R. H., Frey, D. H., Johnson, H. G., & Seiden, R. H. (2003). Privacy and confidentiality in psychotherapy. In D. Bersoff (Ed.), Ethical conflicts in psychology. Washington, DC: American Psychological Association. Ferris, L., Sandercock, J., Hoffman, B., Silverman, M., Barkun, H. & Carlisle J. (1997). Risk assessments for acute violence to third parties: a review of the literature. Can J Psychiatry, 42:1051-60. Greenberg, L. (1984). The evolution of Tarasoff: recent developments in the psychiatrist’s duties to warn potential victims, protect the public and predict dangerousness. J Psychiatry Law, 315-49. Greenfield, S. (2012). The Aurora shooter: Tarasoff and public peril. Simple Justice. Retrieved from http://blog.simplejustice.us/2012/07/26/the-aurora-shooter-tarasoff-and-public-peril.aspx Goldman, D. & Jacob, T. (1991). Anatomy of a second generation Tarasoff case. Can J Psychiatry, 36:35-8. Kermani, E., & Drob, S. (1987) Tarasoff decision: a decade later dilemma still faces psychotherapists. Am J Psychother, 41(2):271-85. Morgenthal, S. (2006). Duty to warn/duty to protect. Retrieved from http://www.heiselandassoc.com/Mydocs/Morgenthal%20Duty%20to%20Warn.pdf Morrison, E. (2009). Health care ethics: critical issues for the 21st century: critical issues for the 21st century. New York: Jones & Bartlett. Siegel, M. (1979). Privacy, ethics, and confidentiality. Professional Psychology, 10(2): 249 – 258. Simon, R.I. (2001). Psychiatry and the Law. California: American Psychiatric Publishing. Tribbensee, N. E. & Claiborn, C. D. (2003). Confidentiality in psychotherapy and related contexts. In W. O’Donohue & K. Ferguson (Eds.), Handbook of professional ethics for psychologists: issues, questions, and controversies. Thousand Oaks, CA: Sage Publications, Inc. Tarasoff v. Regents of University of California, 118 Cal Rptr 129, 529 P 2d 553 (Sup Ct 1974). Truscott, D. & Evans, J. (2001). Responding to dangerous clients. In E. R. Welfel & E. Ingersoll (Eds.), The mental health desk reference: A sourcebook for counselors and therapists. New York: Wiley. Truscott, D., & Goodkey, L. (2003). Ethical principles of the psychology profession and involuntary commitment. In W. T. O’Donohue & K. E. Ferguson, (Eds.), Handbook of professional ethics for psychologists: Issues, questions, and controversies. New York: Sage. Read More