Ethics and Confidentiality -The Duty to Warn - Research Paper Example

Duty to Protect Confidentiality v. Duty to Warn Introduction Confidentiality issues is rarely more perplexing than when taken into account in the perspective of client precariousness. When at some stage in the span of therapy a client confesses to a criminal act committed in the past, excluding child abuse and elder abuse, the therapist is ethically and legally accountable to uphold confidentiality. In contrast, when the statements of the client indicate that s/he has the capability to commit a severe criminal act in the future, the therapist is ethically and legally accountable to sever confidentiality. Although that demarcation appears plain and certain in principle, it is quite difficult to do so in practice (Grabois, 1997). A therapist, as a citizen, could have a moral responsibility to protect a person from possible harm and danger or to save someone who is in the middle of a perilous situation; thus far there is no lawful responsibility to do so. When, on the other hand, a citizen starts offering assistance to the individual at danger, there is at that moment a legal duty to make every rational attempt to continue on that assistance. The justification underlying this exception is that a person’s obvious attempts to help someone could put off others from doing the same. The individual’s unfinished attempts, despite of the result, have basically placed the possible victim at greater danger (Cordess, 2001). A therapist, as a professional, has an ‘affirmative duty’ to his or her clients as an outcome of the agreed therapist-client relationship (Cordess, 2001, 33). This particular duty, which is referred to as the duty to act, was instituted through Tarasoff v. Regents of the University of California. Tarasoff eventually became the norm across jurisdictions and became fundamental to ensuing cases that persistently disallowed that duty. Although designated as a ‘duty to warn,’ the duty of the therapist is to in fact safeguard third parties of possible victims of a projected violence by a client (Kagle & Kopels, 2002, 217). Informed Consent Informed consent is an important norm in medicine and mental health care which advocates the notion that patients have the right to be fully informed throughout their medical treatment. There are two features to the concept of informed consent, namely, a conversation with a therapist or a researcher, along with a form which should be signed to show that a particular conversation took place (Wear, 1998). Informed consent is an indispensable component of contemporary medical practice and medical research, and it is intended to safeguard the patients and physicians. The idea of the necessity for informed consent surfaced from the Nuremberg Trials which was held at the aftermath of the Second World War, the time when the court was under full accounts of experiments performed by the Nazis in the dreaded concentration camps. This evidence was brought into play to condemn and penalize researchers who had carried out such inhumane experiments, and it as well opened up ethical concerns for medical practitioners. Consequently, several countries began implementing some rendition of an informed consent law (Wear, 1998). The assumption underlying the concept of informed consent is that it is exceptionally essential for both the patients and research subjects to be vigorously involved and concerned in their care, contributing in the decision making process equipped with a full knowledge of any possible implications of a treatment or a test. Informed consent laws stresses the importance of individual human rights and independence through maintaining that informed consent be acquired for medical trials and procedures. If for instance a person is physically or mentally inept to grant consent, a representative could be allowed to give permission to particular trials and procedures (Wear, 1998). Clinicians frequently act in response to ethical concerns by first asking as to what the pertinent law states. The intuition is a cautious one. It is not quite rational to talk about ethical alternatives that the law proscribes, or try to form a response when the law has previously furnished one and perseveres upon it (Davidson & Davidson, 1996). The law obliges that a sensible patient-physician norm be drawn upon when deciding on how much information is believed sufficient when talking about a treatment, a trial or procedure with the patient. There are actually three techniques to composing this conversation: what the ordinary doctor would declare regarding the intervention or what is referred to as the ‘reasonable physician standard;’ what an ordinary patient would require to be informed about to become an informed contributor in the decision making process or also referred to as the ‘reasonable patient standard;’ and what an ordinary patient would demand to be informed about and understand to settle to a knowledgeable decision or what is also referred to as the ‘subjective standard’ (Wear, 1998, 59). Confidentiality v. Duty to Warn Therapists are obliged to break confidentiality and fulfill a duty to warn, as well as disclose the risk of violence, every time there is sensible ground to assume a client is threatening to someone or to property. Sensible ground is established by two central attributes (4therapy.com, 2009, para 9-10): 1) The threat must be towards a specific and definable target. This must be a particular person, identifiable persons, or defined property, rather than a general group or category. The threat may be toward the client’s self, and could include such stated intentions as self-mutilation, suicide or even self-neglect. 2) The threat has to be believable. It should be explicit, not vague. Motives count, as does the client’s personal history of threats or violent behavior. Therapists have legal and ethical responsibilities to avert their clients from inflicting harm on themselves and committing violence on others. If a therapist suspects a client is threatening, s/he should use rational and reliable attempts in taking important decisions and actions to both safeguard and caution the possible victim of his or her client’s dangerousness (Gross, 2002). The reporting laws for child abuse oblige therapists and other professionals to report assumed abuse to authorities. The obligation for reporting supersedes the ethical responsibility to safeguard a client’s confidential information. Moreover, the reporting obligation dominates opportunities for confidential conversations between therapists and clients (MEA, 2009). On the other hand, a Michigan statute obliges a related reporting requisite on individuals “employed, licensed, registered, or certified to provide… educational… services” when that individual “suspects or has reasonable cause to believe that an adult has been abused, neglected or exploited” (MEA, 2009, para 19). Furthermore, the obligation to protect occasionally extends to protecting clients/patients from themselves. Courts normally acknowledge that suicide cannot be accurately foreseen, though, therapists have been held accountable when they paid no heed to or failed to evaluate signs of suicide. Courts normally take into account basic concerns: a) did the therapist satisfactorily evaluate the probability that a patient has a suicidal tendency? and, b) if an observable threat of harm was identified, did the therapist take adequate preventative measures to put off suicide? Generally, the therapist is shielded from accountability if they have carefully carried out and recorded a careful assessment, followed by cautiously measured, suitable interventions (4therapy.com, 2009). Several aspects are concerned in what lawyers distinguish as ‘discharging your Tarasoff duties’ (Cordess, 2001, 90). While therapists and other professionals are obliged to take sensible and essential steps to safeguard the possible victim/s, each circumstance is distinctive and therapists’ course of action will be directed to a significant extent by the particular situations. What is Duty to Warn? The court of Tarasoff decreed that therapists have an obligation to sever confidentiality if doing as such is the sole means in which a possible victim can be safeguarded from impending harm. The obligation begins when a therapist has a rational assumption, on the basis of his or her conversations with the client, that the client plans to commit severe violence against a victim that is convincingly identifiable. In relevance, Tarasoff obliges therapists to foresee the extent of threat created by a client through identifying if the danger is valid, if the client has the capacity of committing the violent act, if the mirrored danger would lead into serious harm and damage, and if there is a known or predicted victim, if the client refuses or fails to explicitly identify the targeted victim, then the therapist is not essentially immune from the duty to warn. Tarasoff compels the therapist to inform any possible victim that the therapist must be capable to identify by way of “a moment’s reflection upon what the therapist knows about the client’s life” (Grabois, 1997, 42). Moreover, under the ruling of the Tarasoff, a therapist is obliged to caution the police as well as the known victim/s. In an extension to this, in the case Hedlund v. Superior Court of Orange Country in 1983, the court concluded therapists have an assenting obligation to any unintentional yet predictable victim/s, or those individuals near to the known, targeted victim. The court, in Hedlund decided the therapist must have anticipated the children of the known victim would be in close proximity physically with their mother and, hence, just as at threat of harm (Kagle & Kopels, 2002). Following the case of Hedlund, when doing a Tarasoff admonition, the therapist should recognize and caution any anticipated victims such as minor children, the elderly, family members or colleagues (Kagle & Kopels, 2002). States differ on how wide is the reach of third parties that are under the clinician’s duty to protect. In several states, no duty is present unless the clinician can in fact name the possible victim. In some states, therapists and other professionals have a duty to protect when they figure out a sensible assumption that anyone could be harmed. While states do differ on this concern it is essential for mental health practitioners to have an extensive knowledge of the legal norm for the jurisdiction within which they put into practice (Gross, 2002). In the light of Tarasoff, the clinicians’ duty to third parties can merely be fulfilled through making sensible attempts to warn the police and the projected and anticipated victim/s of the planned threat of the client. Several therapists have been under civil court cases as an outcome of the incorrect assumption they had accomplished enough by warning the police of the planned violence of a client; to be safeguarded, therapist should inform any possible victim (Gross, 2002). Tarasoff Case 1976 (California) Even though medical practitioners have a duty to protect individuals when threat can be foreseen, research has demonstrated that such anticipations are undependable. An empirically supported framework for predicting threats are nonexistent. Mental health practitioners are twice as possible to be inaccurate as accurate in their judgment of whether a client will perpetrate a violent act. Researches have illustrated that professionals frequently excessively predict threats. Moreover, the correctness of foreseeing threat lessens when creating long-term in contrast to short-term predictions (Breen et al., 1997). In spite of the facts that mental health practitioners cannot foresee with sureness that a client will be dangerous, the courts have sanctioned that therapists and other professionals have a duty to protect an individual whom their client intends to harm. The California Supreme Court in 1974 discharged a milestone ruling in Tarasoff v. Board of Regents of the University of California. A psychotherapy client with a psychologist made threats to murder a woman, whom he believed had snubbed him, when she came back from a vacation. In discussion with other psychiatrists, the informed psychologist instigated unintentional commitment appointments that were ineffective for the reason that the client did not meet the rigorous standards for California’s law on civil commitment. The psychologist also warned police of the client’s intended violence. The police momentarily arrested him, yet he was discharged after they established that he was not threatening in view of the fact that the known victim was out of the country. When the woman came back roughly two months subsequent to this incident, though, the client murdered her (Buckner & Firestone, 2000). The parents of the woman instigated an unlawful death suit in opposition to all involved parties, claiming that their daughter should have been informed of the threat to her. The defendants disputed that such an admonition would have broken confidentiality, particularly in light of the studies that has suggested that predictions of threats are undependable. The court articulated, though, that even though it distinguished that successful psychotherapy necessitates confidentiality, psychotherapists are obliged to fulfill a duty to protect a known victim from projected harm, even though confidentiality should be infringed upon. Under the Tarasoff, the court resolved that the lawful duty to protect was founded on the particular therapist-client relationship, and specified this relationship, responsibility for regulating the behavior of the client fitted in to the therapist (Buckner & Firestone, 2000). The ruling of the Tarasoff has ever since been expanded by several states as well as federal jurisdictions to incorporate violent acts against individuals in close proximity to a known victim and when therapists “should have known” threat was present (Kagle & Kopels, 2002, 218). Effects of Tarasoff Ever since Tarasoff, California’s courts and legislatures and those from other states have tried to harmonize the duty to protect confidentiality in opposition to the duty to warn. Case law expanded as several jurisdictions confronted new circumstances concerning violent individuals. Governments responded to the concerns of therapists concerning the disagreement of duties and endorsed exceptions to confidentiality rules when caution was needed to safeguard third parties. Furthermore, several legislatures endorsed decrees that tried to articulate clearly the instances under which accountability would be enforced for failing to safeguard third parties. At present, there exist significant dissimilarities among the states in the manner they cater to these concerns (Gross, 2002). Subsequent to Tarasoff, California’s courts and those in several parts of the country were beset with court cases dealing with clients who had perpetrated violent acts against third parties. In several instances, Tarasoff was applied as a standard. Courts normally decided that, under particular conditions, a therapist had an obligation to protect third parties. The court decisions differed, though, as to whether clinicians could be held accountable for the violence of their clients to third parties or whether the aggression had to be guided in opposition to particular or predicted victims. Courts have, in general, concluded that therapists should take effective strategies to safeguard particular third parties (Kagle & Kopels, 2002). On the other hand, there is broad inconsistency among rulings regarding which third parties the clinicians should protect. Even though the courts perceive the duty to protect as vital, they have not articulated precisely what a clinician should do to safeguard a third party. Under Tarasoff, the court proposed several ways to fulfill the duty. In several cases, the courts declare that a clinician has a duty to espouse sensible techniques to safeguard third parties. The decisions of the courts have not particularly necessitated that warnings be conferred (Kagle & Kopels, 2002). Several states have rules obliging that confidentiality in opportunity be assured to the therapist-client relationship. These rules make clear the restricted conditions under which a clinician could divulge confidential information. One exemption to the confidentiality statute is when clinicians identify that disclosure of confidential information regarding a client is needed to protect a particular client or a third party from evident, forthcoming threat of severe physical or mental harm or damage, disease, or fatality. Nevertheless, even under this decree, clinicians are granted significant prudence as to whether they decide to break confidentiality in these instances. The Illinois rule does not oblige that clinicians give warnings; in its place, it provides a therapist protection from accountability if the practitioner breaks confidentiality to safeguard a third party and the client takes legal action (Buckner & Firestone, 2000). Extensions to Tarasoff The particular duty to protect, which was articulated in the Tarasoff, was understood more generally by various courts that claimed to abide by the Tarasoff, hence that the duty to protect is varied all over the United States. The most expansive version took place in the case of Lipari v. Sears, Roebuck &Co. in 1980. Here, a client harassed people with a shotgun in a jam-packed nightspot, without any indicative warning to his therapists. The client was being cared of in the day care center of Veterans Hospital. He on no account intimidated or threatened any particular individual, but did clarify to his therapists that he was discontented with the quality of care given to him. He bought a shotgun from Sears, Roebuck & Co. while undergoing therapy in the day care center; though, Lipari warned none of the therapy team members that he had purchase the shotgun. He ended his psychiatric therapy several weeks after he bought the shotgun and, some months later, he attacked the nightclub, injuring a woman and slaying her husband. The Nebraska’s federal district court permitted the plaintiffs to continue in a proceeding against the hospital. The court stated that the jury was to make a decision whether the clinician was aware of should have been aware of the client’s threatening tendency. The court discarded the Tarasoff restriction to a known victim (Buckner & Firestone, 2000). This case appeared to oblige not just a duty on therapists to foresee threats, but a duty to safeguard the larger society from threatening clients. Other descendants of Tarasoff expanded the duty by means of extending the security to those individuals who could predictably inflict harm to individuals other than the intended victim. The duty to protect in the Joblonski v. United States case was extended to incorporate a therapist-patient relationship restricted to the emergency context. Under the pieces of evidence of the case, an aggressive man was sent to the hospital by his girlfriend due to his attempt to sexually harass her mother. The therapist assumed that the client was a threat to others, yet could not be consigned under the involuntary commitment rule of California. The previous medical records of the violent man disclosed that he was found out to be experiencing schizophrenia and had an extended history of dangerous and aggressive behavior; though, these medical records were not asked for by the therapists during his appearance. The girlfriend was admonished to keep her distance from him if she is scared of him. He soon after murdered her. The Ninth Circuit Court of Appeals resolved that the hospital was ineffective in acquiring important previous records and in successfully warning the victim (Buckner & Firestone, 2000). In Peck v. Counseling Service of Addison County, the duty to warn was extended to the issue of property. In this particular case, a counselor was informed by his client that he planned to set on fire someone’s barn. The judgment of the court proposed that every mental health professional had a duty to warn not merely potential victims, but also their property (Buckner & Firestone, 2000). Texas and Duty to Warn (Thapar v. Zezulka 1999) Health care providers in Texas, for some years, have been exerting too much effort to identify what duties they have to protect third parties when threats of serious crimes have been intended by their clients toward particular individuals. The Thapar v. Zezulka case was decided by the Texas Supreme Court, and stated that a therapist does not possess an obligation to warn the individual of a particular or general violent threat intended by a mental health patient. Once this holding was made public, numerous affiliates of the medical community were surprised to learn that a duty to warn third parties is nonexistent in Texas (Quinn, 1999). This mistaken belief has emerged as an outcome of the milestone ruling in Tarasoff v. Regents of University of California within which the California Supreme Court ruled that psychotherapists may be held accountable for failure to put into effect sensible care to safeguard a third party if the therapists are aware or should be aware that their clients show a serious threat of violence to other people. Even though the Tarasoff ruling has been approved by several jurisdictions throughout the nation, the ruling has on no account been formally implemented in Texas for the reason that the Texas Supreme Court is hesitant to construct a novel “common law cause of action based in negligence” (Kelso & Candidate, 1999, para 2). Effects of Thapar on Mental Health Professionals The Tarasoff issue appeared before the court in 1999 in the Thapar v. Zezulka case. In this particular case, a Houston Court of Appeals concluded that the mental health practitioner may be held accountable on a principle of failure to warn properly third parties when client expresses a particular threat of violence concerning previously known individuals (Quinn, 1999). In short, the Texas Supreme Court has concluded that even though a violence-inclined mental patient particularly intended to perpetrate harm to a third party, and even though the mental health practitioner absolutely thinks that the client is capable and will commit the threat, the therapist has no lawfully implementable duty to admonish the individual whose life or general being is in danger. The court did not anchor its ruling upon any “public policy immanent in the common law” (Quinn, 1999, 37). It did not anchor its ruling on moral thoughts. It anchored its ruling on public policy as stated by the legislature (Quinn, 1999). The Texas Health & Safety Code, as stated by the Supreme Court, proscribes disclosure to threatened third parties, excluding particular circumstances. None of these exceptions is relevant to the Thapar-Zezulka case. Thus, Dr. Thapar, who was caring for a patient who intended harm and in the end murdered Zezulka could not legally break confidentiality to warn the individual threatened. Nevertheless, stated the court, if disclosure is disallowed by a law, then the therapist can possess no duty to warn (Kelso & Candidate, 1999). On the other hand, Thapar can be held accountable to the murder of Zezulka due to his failure to appropriately inform the police. Certainly, they could have taken on steps to safeguard Zezulka or to warn him. The Supreme Court turned this argument down. To be certain, Justice Enoch examined, the law allows disclosure to police or authorities of the law enforcement agency. However, it does not oblige it. “Imposing a [common law] legal duty to warn third parties of a patient’s threats,” studied Justice Enoch, “would conflict with the scheme adopted by the [Texas] Legislature by making disclosure of such threats mandatory” (Quinn, 1999, 39). Therefore, mental health professionals cover no legal obligation to protect third parties, and to inform law enforcement authorities of reliable, detailed, and urgent threats intended by their patients (Quinn, 1999). Present and Future of Confidentiality Infringement of confidentiality is a practical cause of action that should be more plainly identified by the parties who file lawsuits, and through the courts. In a period within which psychotherapy is turning out to be a more common treatment, the incidence of violations of confidentiality will just heighten. Our society persuades its citizens to give importance to good mental wellbeing, and to discover solutions to urgent crises. If psychotherapy is to be applied as a way to guarantee this good mental wellbeing, we should discover a way to safeguard individuals as they continue disclosing what is necessary for treatment. Even though there is a dearth of cases within which patients take legal action against their therapists for violation of confidentiality, the cases will enlarge as patients look forward to and necessitate that therapists present an impression of paramount confidentiality prior, during and after the therapy. In a period in which confidential information regarding an individual’s health is making it more and more problematic to handle confidentially between therapists and clients, violation of confidentiality court cases will furnish a means for correcting any inaccuracy. Infringement of confidentiality causes of action could initiate to have considerable applicability in a period of managed care. Confidentiality agreement between therapists and patients will generally occur in most psychotherapeutic affiliations. For majority of trained and licensed psychotherapists, this particular confidential association will be made clear in professional ethical codes as well as in state laws (Breen et al., 1997). Hence, therapists should be attentive to circumstances within which they are implored to disclose information regarding their patients. Therapists are sheltered by privilege laws, yet exceptions are still present. Psychotherapists should inform themselves with regard to these laws, particularly since we subsist in a period in which third parties will pursue to be informed of a particular patient’s prognosis and the effectiveness of the psychotherapy. Patients, as well, should be attentive and probing, and request that their designated therapists notify them of any demands for confidential information. Conclusively, the courts have quite constantly decided that guarding the public from intended and predictable harm supplants a patient’s struggle to confidentiality. Moreover, the courts decided that there should be sufficient clinical explanation for violating confidentiality to warn a targeted individual that s/he could be in great risk. Provided that there is no framework that is empirically sound for foreseeing dangerousness and that therapists are undependable in building such predictions, the twofold duty of safeguarding the larger society and confidentiality situates them in a dual connection as they try to mitigate the risks of harm and damage to a third party, distraction of the therapist-patient relationship, and grievances of malpractice. To triumph over this dilemma, psychotherapists and other medical professionals should become well-informed of the ethical and legal concerns involved when caring for a potentially aggressive patient. References Book Annas, G. J. (1989). The Rights of Patients: The Basic ACLU Guide to Patient Rights. Carbondale, IL: Southern Illinois University . Breen, K. J. et al. (1997). Ethics, Law and Medical Practice. St. Leonards, N.S.W.: Allen & Unwin. Cordess, C. (2001). Confidentiality and Mental Health. London: Jessica Kingsley. Wear, S. (1998). Informed Consent: Patient Autonomy and Clinician Beneficence within Health Care. Washington, DC: Georgetown University Press. Journal Articles Buckner, F. & Firestone, M. (2000). Where the Public Peril Begins: 25 Years After Tarasoff. The Joournal of Legal Medicine , 187-222. Davidson, J. R. & Davidson, T. (1996). Confidentiality and Managed Care: Ethical and Legal Concerns. Health and Social Work , 208+. Grabois, E. W. (1997). The Liability of Psychotherapists for Breach of Confidentiality. Journal of Law and Health , 39-84. Gross, B. (2002). The Duty to Warn. Annals of the American Psychotherapy Association , 24+. Kagle, J. D. & Kopels, S. (2002). Confidentiality after Tarasoff. Health and Social Work , 217+. Online References Duty to Protect. (2009). 4therapy.com. http://www.4therapy.com/professional/research/lawandethics/item.php?uniqueid=4612&categoryid=271& Duty to Report Child Abuse. (2009, February 19). Michigan Education Association. http://www.mea.org/legal/duty_to_report.html Kelso, J. D. & Candidate, LL.M. (1999, September 17). No Duty to Warn of Threates of Violence: Dispelling the Myth in Texas Jurisprudence. http://www.law.uh.edu/healthlaw/perspectives/Tort/990917Thapar.html Quinn, M. S. (1999). To Squeal or not to Squeal? Insurance Journal/Texas , 36-40. http://www.michaelseanquinn.com/articles/7_INSURANCE_LITIGATION/To%20Squeal%20or%20Not%20to%20Squeal%20(07.19.99).pdf Read More