Breach of Confidentiality: The Legal Implications

When You Are Seeking TherapyAbnormal 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.

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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
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 individua”
( 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 converting 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.

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
Category: Science


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