Breach Of Confidentiality: The Legal Implications When You Are Seeking Therapy Essay, Research Paper

Breach of Confidentiality: The Legal Implications When You Are Seeking Therapy

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

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.

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