Ethical and legal issues

After reviewing the readings and video assignments, share with the class your future career aspirations and the use of confidentiality and when it can be broken. Child Abuse reporting laws and Elder Abuse reporting laws may be some examples, but be more specific about what needs to be reported and your feelings about having to report.
Issues for Mental Health Professionals, Vol.1

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introduction Perhaps the central right of a client is the guarantee that disclosures in therapy sessions will be protected. However, you cannot promise your clients that everything they talk about will always remain confidential. In this chapter we consider the ethical and legal ramifications of confidentiality and explore the process, importance, and impact of informing your clients from the outset of therapy of those circumstances that limit confidentiality. The more you consider the legal ramifications of confidentiality, the clearer it becomes that most matters are not neatly defined. Even if therapists have become familiar with local and state laws that govern their profession, this legal knowledge alone is not enough to enable them to make sound decisions. Each case is unique. There are many subtle points in the law and at various times conflicting ways to interpret the law. Professional judgment plays a significant role in resolving cases, from both an ethical and a legal perspective. Keep in mind that the rules of law are considered relative to a particular situation.

confidentiality: ethical and legal issues

which the psychiatrist deals, he or she must be circumspect in the information that he or she chooses to disclose to others about a patient. The welfare of the patient must be a continuing consideration. (4.1.)

AmeriCAn PsyChologiCAl AssoCiAtion (2010) Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship. (4.01.)

AmeriCAn sChool Counselor AssoCiAtion (2010) Professional school counselors inform individual students of the purposes, goals, techniques, and rules of procedure under which they may receive counseling. Disclosure includes the limits of confidentiality in a developmentally appropriate manner. Informed consent requires competence on the part of students to understand the limits of confidentiality and therefore, can be difficult to obtain from students of a certain developmental level. Practitioners are aware that even though every attempt is made to obtain informed consent it is not always possible and when needed will make counseling decisions on students’ behalf. (A.2.a.)

CAnAdiAn Counselling And PsyChotherAPy AssoCiAtion (2007) Counselling relationships and information resulting therefrom are kept confidential. However, there are the following exceptions to confidentiality: • when disclosure is required to prevent clear and imminent danger to the client or others; • when legal requirements demand that confidential material be revealed; • when a child is in need of protection. (B.2.)

nAtionAl AssoCiAtion of soCiAl Workers (2008) Social workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons. The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person. In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed. (1.07.c.)

AmeriCAn mentAl heAlth Counselors AssoCiAtion (2010) Mental health counselors have a primary obligation to safeguard information about individuals obtained in the course of practice, teaching, or research. Personal information is communicated to others only with the person’s consent, preferably written, or in those circumstances, as dictated by state laws. Disclosure of counseling information is restricted to what is necessary, relevant and verifiable. (Principle 2.)

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Confidentiality Confidentiality, privileged communication, and privacy are related concepts, but there are important distinctions among them. confidentiality, which is rooted in a client’s right to privacy, is at the core of effective therapy; it “is the counselor’s ethical duty to protect private client communication” (Wheeler & Bertram, 2012, p. 78). As a general rule, psychotherapists are prohibited from disclosing confidential communications to any third party unless mandated or permitted by law to do so. Donner, VandeCreek, Gonsiorek, and Fisher (2008) argue that confidentiality is a primary obligation for mental health professionals and must be given priority. These authors point out that the ever-growing list of exceptions to confidentiality, which focuses on protecting the public, has been given priority over protecting the privacy of clients. Donner and colleagues believe that any disclosure of confidential information should be a last resort and that mental health professionals must push back to limit the growing list of mandatory and permissible disclosures. Mental health professionals have an ethical responsibility, as well as a legal and professional duty, to safeguard clients from unauthorized disclosures of information given in the therapeutic relationship. Professionals must not disclose this information except when authorized by law or by the client to do so. Hence, there are limitations to the promise of confidentiality. Court decisions have underscored that there are circumstances in which a therapist has a duty to warn and to protect the client or others, even if it means breaking confidentiality. Also, because confidentiality is a client’s right, psychotherapists may legally and ethically reveal a client’s confidences if a client waives this right. Confidentiality belongs to the client, and counselors generally do not find it problematic to release information when the client requests that they do so. Fisher (2008) has designed a six-step ethical practice model for protecting confidentiality rights that places legal mandates in an ethical context. The six steps include the following: Preparation. To inform your clients about the limits of confidentiality, you must understand the limits yourself. This involves doing your legal homework and engaging in personal soul searching regarding your own moral principles. Devise an informed consent document that reflects your real intentions and that describes confidentiality and its limits in clear language. Discuss the importance of confidentiality with your clients. Tell clients the truth “up front.” Inform your clients about the limits you intend to impose on confidentiality, and obtain your client’s consent to accept these limits as a condition of entering into a professional relationship with you. Obtain truly informed consent before making a disclosure. Make disclosures only if legally unavoidable; obtain and document your client’s consent before disclosing. Respond ethically to legal requests for disclosure. Notify your client of a pending legal demand for disclosure without his or her consent. Limit disclosure of confidential information to the extent that is legally possible. Avoid the “avoidable” breaches of confidentiality. Avoid making unethical exceptions to the confidentiality rule; establish and maintain policies aimed at protecting confidentiality; monitor your note taking and record keeping practices; anticipate LO2

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legal demands and your response to such requirements; and empower clients to act protectively on their own behalf. Talk about confidentiality. Model ethical behavior and practice; invite a dialogue with clients about confidentiality as needed; teach ethical practices to students and supervisees; and educate attorneys, judges, and consumers. Fisher’s (2008) model can assist mental health professionals to frame ethical questions more clearly and to help identify questions to explore in the process of consultation. “In short, psychologists can use this practice model to reclaim their status as experts about the confidentiality ethics of their profession” (p. 12).

Privileged Communication Privileged communication is a legal concept that generally bars the disclosure of confidential communications made to a psychotherapist from any judicial proceedings or court of law (Knapp & VandeCreek, 2012). All states have enacted into law some form of psychotherapist–client privilege, but the specifics of this privilege vary from state to state. Clinicians need to understand the privilege laws in the states in which they practice. When a client–therapist relationship is covered as privileged communication by statute, clinicians may not disclose confidential information (Remley, 2009). Therapists can refuse to answer questions in court or refuse to produce a client’s records in court. These laws ensure that personal and sensitive client information will be protected from exposure by therapists in legal proceedings. Again, this privilege belongs to the client and is designed for the client’s protection rather than for the protection of the counseling professional. If a client knowingly and rationally waives this privilege, the professional has no legal grounds for withholding the information. Professionals are obligated to disclose information that is necessary and sufficient when the client requests it, but only the information that is specifically requested and only to the individuals or agencies that are specified by the client. The therapist can make a clinical decision to withhold all or some information if the client waves his or her privilege.

priviLeged COmmuniCatiOn in grOup COunseLing, COupLes and famiLy therapy, and ChiLd and adOLesCent therapy. The legal concept of privileged communication generally does not apply to group counseling, couples counseling, family therapy, or child and adolescent therapy. However, the therapist is still bound by confidentiality with respect to circumstances not involving a court proceeding. Statements made in the presence of a third party may not be protected in a court proceeding. Members of a counseling group can assume that they could be asked to testify in court concerning certain information revealed in the course of a group session, unless there is a statutory exception. In states where no law exists to cover confidentiality in group therapy, courts may use the ethics codes of the professions regarding confidentiality. If a situation arises, therapists may need to demonstrate the means they used to create safety for the group members. A written group contract defining members’ responsibility for maintaining confidentiality of whatever takes place in a group can be used for this purpose. Similarly, couples therapy and family therapy are not subject to privileged communication statutes in many states. In the case of child and adolescent clients,

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there are restrictions on the confidential character of disclosures in the counseling relationship. No clear judicial trend has emerged for communications that are made in the presence of third persons. Therapists should inform clients about confidentiality and its exceptions from the beginning of the professional contact and should remain open to discussing this matter as the situation may warrant later in the professional relationship. Clients have a right to be informed about any limitations on confidentiality in group work, child and adolescent therapy, and couples and family therapy. Ambiguity may exist regarding who the client is and the specific nature of the therapy goals when counseling couples or families. When more than one client is in the consulting room at a time, the confidentiality mandate can become complex. Confidentiality and its exceptions must be addressed at the outset of treatment and later as well when these matters arise (Nagy, 2011). Furthermore, therapists working with couples or families should clearly communicate their policy about keeping, or not keeping, secrets disclosed by one of the partners or family members in advance of starting counseling (Barnett & Johnson, 2010). We discuss this topic in more detail in Chapter 11.

the Jaffee Case and priviLeged COmmuniCatiOn. The basic principles of privileged communication have been reaffirmed by case law. On June 13, 1996, the United States Supreme Court ruled that communications between licensed psychotherapists and their clients in the course of diagnosis or treatment are privileged and therefore protected from forced disclosure in cases arising under federal law. The Supreme Court ruling in Jaffee v. Redmond (1996), written by Justice John Paul Stevens, states that “effective psychotherapy depends upon an atmosphere of confidence and trust in which the patient is willing to make frank and complete disclosure of facts, emotions, memories, and fears.” The 7–2 decision in this case represented a victory for mental health organizations because it extended the confidentiality privilege. In the Jaffee case, an on-duty police officer, Mary Lu Redmond, shot and killed a suspect while attempting an arrest. The victim’s family sued in federal court, alleging that the victim’s constitutional rights had been violated. The court ordered Karen Beyer, a licensed clinical social worker, to turn over notes she made during counseling sessions with Redmond after the shooting. The social worker refused, asserting that the contents of her conversations with the police officer were protected against involuntary disclosure by psychotherapist–client privilege. The court rejected her claim of psychotherapist–client privilege, and the jury awarded the family $545,000. The Court of Appeals for the Seventh Circuit reversed this decision and concluded that the trial court had erred by refusing to afford protection to the confidential communications between Redmond and Beyer. Jaffee, an administrator of the victim’s estate, appealed this decision to the Supreme Court. The Supreme Court upheld the appellate court’s decision, clarifying for all federal court cases, both civil and criminal, the existence of the privilege. The Court recognized a broadly defined psychotherapist–client privilege and further clarified that this privilege is not subject to the decision of a judge on a case-by-case basis. The Court’s decision to extend federal privilege (which already applied to psychologists and psychiatrists) to licensed social workers leaves the door open for inclusion of other licensed psychotherapists, such as licensed marriage and family therapists, licensed professional counselors, and mental health counselors.

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In discussing the impact on the law of the Jaffee v. Redmond case, Shuman and Foote (1999) indicate that the case is not constitutionally based. Instead, Jaffee is an interpretation of the Federal Rules of Evidence that apply in actions tried in federal courts. Thus, Jaffee applies only in federal cases, both civil and criminal, governed by the Federal Rules of Evidence. Knapp and VandeCreek (1997) conclude that more work needs to be done in extending equal protection to clients across all states. In that way therapists will better be able to inform their clients about the limits to confidentiality.

Privacy Privacy, as a matter of law, refers to the constitutional right of individuals to be left alone and to control their personal information (Wheeler & Bertram, 2012). Practitioners should exercise caution with regard to the privacy of their clients. It is easy to invade a client’s privacy unintentionally. Examples of some of the most pressing situations in which privacy is an issue include an employer’s access to an applicant’s or an employee’s psychological tests, parents’ access to their child’s school and health records, and a thirdparty payer’s access to information about a client’s diagnosis and prognosis. If counselors have occasion to meet clients outside of the professional setting, it is essential that they do not violate their privacy. This is especially true in small towns, where such meetings can be expected. In such cases, it is a good practice to talk with your client and discuss how you might interact in these possible meetings. Consider what you might do in the following case.

The case of Erica. Helena is a counselor in the student services department at a community college. She has been counseling Erica for several months for a variety of problems having to do with her body image and eating behaviors. One evening Helena and a friend go out to a local cafe for a light meal and a coffee. Helena is surprised when the waitress comes up to her cheerily and says hello. She looks up and realizes it is Erica. She chats briefly with Erica who then takes her order and goes off to serve other customers. Helena’s friend then asks who Erica is and how she knows her? • If you were the counselor, would you introduce Erica to your friend? If so how? • If you were the counselor, how would you answer your friend’s question? • If Erica acknowledged that you were her counselor in front of your friend, how would you respond to her? • If Erica began to discuss her sessions with you, what would you do? Commentary. These chance meetings are often unavoidable. If Helena had ignored Erica, not only could this be seen as being rude, but Erica might feel offended. It is inappropriate for Helena to acknowledge to her friend that Erica is her client. If Erica began discussing matters pertaining to her counseling sessions, Helena should find a way to steer the interaction to a general conversation. Helena’s dilemma reminds us that during the informed consent process, it is a good idea to discuss how clients would like you to handle chance encounters outside of therapy; this is especially important if you live and practice in a small community or at a college or university campus.

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Most professional codes of ethics contain guidelines to safeguard a client’s right to privacy. An example of the privacy standard, designed to minimize intrusions on privacy, is found in the APA (2010) ethics code: Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtain appropriate professional consultations; (3) protect the client/patient, psychologist, or others from harm; or (4) obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose. (4.05.b.) An area where privacy is an issue involves practitioners who also teach courses, offer workshops, write books and journal articles, and give lectures. If these practitioners use examples from their clinical practice, it is of the utmost importance that they take measures to adequately disguise their clients’ identities. Sperry and Pies (2010) discuss the ethical considerations in writing about clients. They identify three options for presenting case material: (1) seek the client’s permission to publish, which some consider ethically questionable because it entails inserting the clinician’s professional agenda into the client’s treatment; (2) disguise case material for publication, which may or may not release the therapist from needing to secure the client’s permission; or (3) develop composite case material from two or more clients. Duffy (2010) and Sink (2010) provide additional views on the use of client case material. Most of the case examples and commentaries we include in this book are fictional cases we have created. In the few actual clinical examples, we have taken care to disguise any identifying details. Students should be advised to adequately disguise identities of their clients in any reports they give in class. Of course, students’ personal comments in class are also to be kept confidential. Confidentiality and Privacy in a school setting Managing confidentiality is a challenge most school counselors face. School counselors need to balance their ethical and legal responsibilities with three groups: the students they serve, the parents or guardians of those students, and the school system. When minors are unable to give informed consent, parents or guardians provide this informed consent, and they may need to be included in the counseling process. School counselors are ethically obliged to respect the privacy of minor clients and maintain confidentiality, yet this obligation may be in conflict with laws regarding parental rights to be informed about the progress of treatment and to decide what is in the best interests of their children. The ASCA (2010) states that school counselors “recognize their primary obligation for confidentiality is to the student but balance that obligation with an understanding of the parents’/guardians’ legal and inherent rights to be the guiding voice in their children’s lives” (A.2.d.). Counselors have an ethical obligation to safeguard the confidentiality of minors to the extent that it is possible. School counselors have an ethical responsibility to ask for client permission to release information, and they should clearly inform students of the limitations of confidentiality and how and when confidential information may be shared. The ASCA (2010) guideline regarding parents is that the school counselor “informs parents/guardians of the counselor’s role to include the confidential nature of

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the counseling relationship between the counselor and student” (Section B.2.a.). Although school counselors may be required to provide certain information to parents and school personnel, they need to do so in a manner that will minimize intrusion of the child’s or adolescent’s privacy and in a way that demonstrates respect for the counselee. To the degree possible, school counselors aim to establish collaborative relationships with parents and school personnel. Laws regarding confidentiality in school counseling differ. In some states, therapists in private practice are required to demonstrate that attempts have been made to contact the parents of children who are younger than 16, whereas school counselors are not required to do so. Schools that receive federal funding are generally bound by the provisions of the Family Educational Rights and Privacy Act of 1994 (FERPA). It is essential that school counselors exercise discretion in the kind and extent of information they reveal to parents or guardians about their children. School personnel and administrators may operate under different guidelines regarding confidentiality, and they may not understand the mental health professions’ requirements. When a school counselor withholds information from school personnel and administrators about students in counseling, especially with regard to risk-taking behaviors, the counselor “may be seen as something other than a team player (i.e., school administrators may view school counselors’ protecting the confidentiality of students as insubordination)” (Moyer, Sullivan, & Growcock, 2012, p. 99). This is a complex area that requires careful thought and consideration, as the following case examples illustrate.

The case of Serena. Serena, a school counselor, shifted her career from private practice to counseling in an elementary school. She was particularly surprised by the differences between private practice and school counseling with respect to confidentiality issues. She remarked that she was constantly fielding questions from teachers such as “Whom do you have in that counseling group?” “How is Alex doing?” “It’s no wonder this girl has problems. Have you met her parents?” Although Serena talked to the principal and teachers about the importance of maintaining a safe, confidential environment for students in counseling situations, she would still receive questions from them about students, some of whom were not in their classes. In addition to the questions from teachers, Serena found that she had to deal with inquiries from school secretaries and other staff members, some of whom seemed to know everything that was going on in the school. They would ask her probing questions about students, which she, of course, was not willing to answer. For example, although she would not tell a secretary whom she was counseling, a teacher might have told the secretary that she was seeing one of his students. Serena observed that the principal and parents also asked for specific information about the students she was seeing. She learned the importance of talking to everyone about the need to respect privacy. If she had not exercised care, it would have been easy for her to say more than would have been ethical to teachers, staff members, and parents. She also learned how critical it was

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to talk about matters of confidentiality and privacy in simple language with the schoolchildren she counseled. • If you were asked some of the questions posed to Serena, how would you respond? • How would you protect the privacy of the students and at the same time avoid alienating the teachers and staff members? • How would you explain the meaning of confidentiality and privacy to teachers? staff members? parents? administrators? the children? Commentary. This case illustrates the importance of a school counselor taking the initiative to educate parents, administrators, and staff members about the need to respect privacy and protect confidentiality of minor clients. Serena took steps to protect the privacy of the children by educating all concerned about the importance of confidentiality in counseling. A further step Serena might take is to offer in-service training for all school staff regarding the importance of confidentiality. Because school counselors are part of an educational community, they often consult with parents, teachers, and administrators and may be asked to reveal student confidences. Moyer, Sullivan, and Growcock (2012) point out that school counselors must be able to determine when administrators have the ethical right to gain access to confidential information about students, especially in cases of risk-taking behavior by students. In addition, “the issue is confounding because the administrator on campus is often the school counselor’s direct supervisor” (p. 99).

The case of Jeremy. Jeremy, a third grade boy in an elementary school, reports to his school counselor that he was with his mother when she stole a dress from a store. Jeremy also reports that after he and his mother left the store, she told him that she at times stole food because she couldn’t afford it. Jeremy requests that the counselor not say anything to his mother because she has been very depressed about not having a job and he worries about what she might do if she learns that he is talking to a counselor about her. After the session, the counselor initiates a conversation with Jeremy’s fourth grade sister, who is a student in the same school, to further explore the allegation of the mother’s stealing. • Was this school counselor behaving inappropriately by initiating a conversation with a client’s sibling to further explore an alleged crime? • As a counselor, do you have a legal obligation in this case? • Would you consider calling Jeremy’s mother to schedule a meeting with her? Why or why not? • What would you have done if you were counseling Jeremy? Commentary. The therapist cannot automatically assume that Jeremy is telling the truth, but talking to Jeremy’s sister is a violation of Jeremy’s confidentiality. If the mother is indeed stealing from stores, she may be arrested, which could be traumatic for the children. The school counselor’s primary duty is to address Jeremy’s fear and his well-being. The therapist may suggest that Jeremy ask his mother to attend a session with him so Jeremy has an opportunity to express his fears in a conjoint session. A school counselor may have an ethical and legal responsibility to report a parent for an alleged crime, especially when there is risk of harm to the minor such as dealing drugs from the home, driving drunk with children in the car, or leaving

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the children alone for long periods of time. However, crimes that do not threaten the safety of a child do not have to be reported. Even when such a report is necessary, it is important to simultaneously work to keep the minor client engaged. The role of the counselor is not to be a detective or to investigate details of an alleged crime but to focus on the clinical needs and safety of the minor client.

A case of academic dishonesty. Simon, a high school counselor, is told by Tess, a student, that she and some friends have stolen a chemistry final exam. Tess requests that Simon not say a word about it to anyone because she is presently failing chemistry and needs to do well on the final exam to pass the course and graduate from high school. Simon decides not to divulge any information, respecting the student’s request to maintain confidentiality. • What are your thoughts about Simon’s decision? • How might this dilemma for Simon raise questions concerning the limits to confidentiality? • What would you have done if you were the counselor in this situation? • Can school policies be included as you explain the limits to confidentiality to students in your role as a school counselor? Why or why not? Commentary. The counselor has no obligation to breach confidentiality because there is no danger to life. If it is school policy that such matters must be reported, this information should be clearly stated in an informed consent document. One clinical issue that could be explored is why this student told Simon about the theft.

ethical and legal ramifications of Confidentiality and Privileged Communication Clients in counseling are involved in a deeply personal relationship and have a right to expect that what they discuss will be kept private. The compelling justification for confidentiality is that it is necessary in order to encourage clients to develop the trust needed for full disclosure and for the other work involved in therapy. Clients must feel free to explore all aspects of their lives without fear that these disclosures will be released outside the therapy room. Counselors are ethically obligated to help clients appreciate the meaning of confidentiality by presenting it in language the client can understand and that respects the cultural experiences of the client (Barnett & Johnson, 2010). The meaning of confidentiality may be interpreted in different ways depending on the client’s culture. By encouraging an ongoing dialogue about how, when, and with whom information will be shared, counselors can establish a collaborative relationship with clients (Wheeler & Bertram, 2012). When it does become necessary to break confidentiality, it is good practice to inform the client of the intention to take this action and also to invite the client to participate in the process. For example, all states now have statutes that require professionals who suspect any form of child abuse to report it to the appropriate agencies, even when the knowledge was gained through confidential communication with clients. A professional who reports suspected child abuse, in good faith, is immune from civil liability and criminal prosecution as a mandated reporter (Jensen, 2006).

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exCeptiOns tO COnfidentiaLity and priviLeged COmmuniCatiOn. Counselors must help clients understand that confidentiality is not an absolute, and it is essential for counselors to describe the limits and exceptions to confidentiality (Barnett & Johnson, 2010). Although ethical standards provide guidelines regarding the circumstances under which confidentiality cannot be maintained, therapists must exercise their own professional judgment in specific situations. When assuring their clients that what they reveal will ordinarily be kept confidential, therapists should point out that they also have obligations to others. Therapists are legally and ethically bound to protect others from harm. Most major professional organizations have taken the position that practitioners may need to reveal certain information when there is serious and foreseeable danger to an individual or to society. The ASCA’s (2010) ethical standard states this clearly: Professional school counselors recognize the complicated nature of confidentiality in schools and consider each case in context. They keep information confidential unless legal requirements demand that confidential information be revealed or a breach is required to prevent serious and foreseeable harm to the student. Serious and foreseeable harm is different for each minor in schools and is defined by students’ developmental and chronological age, the setting, parental rights and the nature of the harm. School counselors consult with appropriate professionals when in doubt as to the validity of an exception. (A.2.c.) It is the responsibility of counselors to clarify the ethical and legal restrictions on confidentiality. Consider these exceptional circumstances in which it is permissible to share information with others in the interest of providing competent services to clients: • When the client requests a release of information • When reimbursement or other legal rules require disclosure • When clerical assistants handle confidential information, as in managed care • When the counselor consults with experts or peers • When the counselor is working under supervision • When other mental health professionals request information and the client has given consent to share • When other professionals are involved in a treatment team and coordinate care of a client Remley and Herlihy (2014) and Welfel (2013) provide detailed discussions of exceptions to confidentiality and privileged communication. Among some of the conditions that warrant disclosure of information shared in the counseling relationship are these legally mandated exceptions to confidentiality and privileged communication: • Disclosure of confidential information is ordered by a court • Client waiver of the privilege • Clients file complaints against their counselors • Clients claim psychological damage in a lawsuit • Civil commitment proceedings are initiated • Statutes involving child abuse or elder abuse mandate disclosure • Clients pose a danger to others or to themselves

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Remley and Herlihy (2014) state that there are at least 15 exceptions to confidentiality and privileged communication. They underscore the importance of consultation (and documentation) whenever practitioners are in doubt about their obligations regarding confidentiality or privileged communication. The limitations of confidentiality may be greater in some settings and agencies than in others. In addition, exceptions to confidentiality vary by jurisdiction, and counselors are required to know the laws that govern their area of practice. If clients are informed about the conditions under which confidentiality may be compromised, they are in a better position to decide whether or not to enter counseling. If clients are involved in involuntary counseling, they can decide what they will disclose in their sessions. It is generally accepted that clients have a right to understand in advance the circumstances under which therapists are required or allowed to communicate information about them to third parties. Unless clients understand the exceptions to confidentiality, their consent to treatment is questionable. In an addiction treatment center, the policy may be “what is said to one staff member is said to all.” This frees the entire treatment staff to share information about patients as a part of the treatment process, and it eliminates concerns about breaching confidentiality. One reason for this practice may be to avoid triangulation of the staff, which would be to the detriment of the patients. Of course, the patients should be made aware of this policy. When patients suffer a relapse during addiction treatment and public safety is jeopardized, counselors have a duty to report. If being intoxicated while on the job can seriously threaten the lives of others, such as when an airline pilot, bus driver, or surgeon is frequently relapsing, counselors have a duty to disclose this (Glaser & Warren, 1999). These situations cannot be ignored. If you breach confidentiality in an unprofessional manner (in the absence of a recognized exception), you open yourself to both ethical and legal sanctions, including expulsion from a professional association, loss of certification, license revocation, and a malpractice suit. To protect yourself against such liability, it is essential to become familiar with all applicable ethical and legal guidelines pertaining to confidentiality, including state privilege laws and their exceptions, child and elder abuse reporting requirements, and the parameters of the duty-to-protect exceptions in your state.

The case of Lorenzo. Lorenzo, 16 years old, is sent to a family guidance clinic by his parents. During the first session the counselor sees Lorenzo and his parents together. She tells the parents in his presence that what she and Lorenzo discuss will be confidential and that she will not disclose information acquired through the sessions without his permission. The parents seem to understand that confidentiality is necessary for trust to develop between their son and his counselor. At first Lorenzo is reluctant to come in for counseling. Eventually, as the sessions go on, he discloses that he has a serious drug problem. Lorenzo’s parents know that he was using drugs at one time, but he has told them that he is no longer using them. The counselor listens to anecdote after anecdote about Lorenzo’s use of illegal drugs, about how “I am loaded at school every day,” and about a few brushes with death when he was under the influence of illegal substances. Finally, she tells Lorenzo that

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she does not want the responsibility of knowing he is experimenting with illegal drugs and that she will not agree to continue the counseling relationship unless he stops using them. At this stage she agrees not to inform his parents, on the condition that he quits using drugs, but she does tell him that she will be talking with one of her colleagues about the situation. Lorenzo apparently stops using drugs for several weeks. However, one night while he is under the influence of methamphetamine he has a serious automobile accident. As a result of the accident, Lorenzo is paralyzed for life. Lorenzo’s parents angrily assert that they had a legal right to be informed that he was seriously involved in drug use, and they file suit against both the counselor and the agency. • What is your general impression of the way Lorenzo’s counselor handled the case? • Do you think the counselor acted in a responsible way toward the client? the parents? the agency? • If you were convinced that Lorenzo was likely to hurt himself or others because of his drug use and his emotional instability, would you have informed his parents, even at the risk of losing Lorenzo as a client? Why or why not? • Which of the following courses of action could you have taken if you had been Lorenzo’s counselor? Check as many as you think are appropriate: ___ State the legal limits on you as a therapist during the initial session. ___ Consult with the supervisor of the agency as well as with other colleagues. ___ Refer Lorenzo for psychological testing to determine the degree of his emotional disturbance. ___ Refer Lorenzo to a psychiatrist for treatment. ___ Continue to see Lorenzo without any stipulations. ___ Insist on a session with Lorenzo’s parents as a condition of continuing counseling. ___ Inform the police or other authorities. ___ Document your decision-making process with a survey of pertinent research. • What potential ethical violations do you see in this case? Commentary. This case emphasizes the importance of doing a thorough assessment of a client. When Lorenzo spoke of “a few brushes with death,” it was clear that he was a danger to himself, which was cause for the counselor to take immediate action. This therapist wanted to believe Lorenzo’s story and failed to take the necessary steps to prevent harmful consequences to her client. This case demonstrates how important it is to set limits to confidentiality based on the counselor’s assessment (danger to self or others) and highlights the issue of informed consent. Although the counselor promised confidentiality at the outset, many circumstances and jurisdictional requirements may necessitate disclosure of confidential information to both an official agency and to the parents or legal guardians. When explaining informed consent, counselors who routinely work with minors need to clarify the various exceptions to confidentiality in language minor clients can understand.

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additiOnaL Cases fOr yOur refLeCtiOn. We have provided commentaries on many cases involving ethical dilemmas. Based on what you have learned and from your own deliberations, select the most ethical course of action in each of the following cases. 1. You are a student counselor. For your internship you are working with college students on campus. Your intern group meets with a supervisor each week to discuss your cases. One day, while you are having lunch in the campus cafeteria with three other interns, they begin to discuss their cases in detail, even mentioning names of clients. They joke about some of the clients they are seeing, while nearby there are other students who may be able to overhear this conversation. What would you do in this situation? ____ I would tell the other interns to stop talking about their clients where other students could overhear them and to continue their conversation in a private place. ____ I would bring the matter up in our next practicum meeting with the supervisor. ____ I would take no action. 2. You are leading a counseling group on a high school campus. The members have voluntarily joined the group. In one of the sessions several of the students discuss the drug use on their campus, and two of them reveal that they sell illegal substances to their friends. You discuss this matter with them, and they claim that there is nothing wrong with using these drugs. They argue that most of the students on campus use drugs, that no one has been harmed, and that there isn’t any difference between using drugs (which they know is illegal) and using alcohol. What would you do in this situation? ____ Because their actions are illegal, I would report them to the police. ____ I would do nothing because I would not want to jeopardize their trust in me. ____ I would report the situation to the school authorities but keep the identities of the students confidential. ____ I would let the students know that I planned to inform the school authorities of their actions and their names. ____ I would not take the matter seriously because the laws relating to drugs are unfair. ____ I would explore with the students their reasons for making this disclosure. ____ I would start an education program pertaining to drug abuse. 3. You are counseling children in an elementary school. Miriana is referred to you by her teacher because she is becoming increasingly withdrawn. After several sessions Miriana tells you that she is afraid that her father might kill her and that he frequently beats her. Until now she has lied about obvious bruises on her body, claiming that she fell off her bicycle and hurt herself. She shows you welts on her arms and back but tells you not to say anything to anyone because her father has threatened a worse beating if she tells anyone. What would you do in this situation? ____ I would respect Miriana’s wishes and not tell anyone what I knew. ____ I would report the situation to the principal and the school nurse.

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____ I would immediately go with Miriana to her home and talk to her parents. ____ I would report the matter to the police and to Child Protective Services. ____ I would ask Miriana why she was telling me about the beatings if she did not want me to reveal them to anyone else. ____ I would tell Miriana that I had a legal obligation to make this situation known to the authorities but that I would work with her and not leave her alone in her fears.

privaCy issues With teLeCOmmuniCatiOn deviCes Telephone, answering machine, voice mail, fax, cellular phone, and email all pose a number of potential ethical problems with regard to protecting client privacy. Barros-Bailey and Saunders (2010) point out that “when communication can be easily captured, copied, transferred, disseminated, and stored in written text (e.g., email, text messaging), through picture or video means (e.g., smart phone cameras, VoIP technology such as Skype), or verbally (e.g., recording devices in all sorts of portable media from cell phones to MP3 players or recorders), the danger for a breach of confidentiality substantially increases” (p. 256). Rummell and Joyce (2010) recommend “password protection, data encryption, use of secure socket layer encryption for Internet traffic between psychotherapist and client computers, and use of a firewall” to promote confidentiality of client information (p. 488). Yet they admit that even these measures cannot guarantee confidentiality. Accidental interception, unauthorized email access, and email snooping are potential mishaps that can occur. Compared to other forms of electronic technology, Brenes, Ingram, and Danhauer (2011) suggest the telephone may be the preferred method for providing psychotherapy. Client satisfaction is high with telephone-delivered treatment, but this form of psychotherapy is not optimal in some situations, such as for clients who have low motivation for therapy. More research is needed to determine who might benefit most from telephone-delivered therapy, and in what situations it is appropriate. Brenes and colleagues point out a number of challenges of telephonedelivered therapy. Mental health practitioners must exercise caution in discussing confidential or privileged information with anyone over the telephone and especially when employing digital and mobile technologies. Therapists must set firm boundaries with clients from the beginning and address matters such as avoiding interruptions and privacy. It is critical to disclose the limits of confidentiality with clients if wireless telephones are used; Brenes and colleagues recommend land lines to ensure greater privacy and confidentiality for clients. Using fax machines and email to send confidential material is another source of potential invasion of a client’s privacy. It is the counselor’s responsibility to make sure fax and email transmissions arrive in a secured environment in such a way as to protect confidential information. Before sending a confidential fax or email, it is a good idea to make a telephone call to ensure that the appropriate person will be able to retrieve this information in a safe and sensitive manner (Cottone & Tarvydas, 2007). LO3

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Tran-Lien (2012) recommends that therapists who plan to exchange emails with their clients provide clients with a statement (as part of the informed consent process) that details the therapist’s guidelines and limitations on the use of email, the potential risks to confidentiality, and the expected turnaround time. She notes that “communicating with your clients via e-mail can be done, but careful consideration should be given to the guidelines and relevant legal and ethical issues” (p. 22). Bradley, Hendricks, Lock, Whiting, and Parr (2011) acknowledge that “because e-mail is such a common mode of communication, counselors should be fully aware and proactive about the challenges it raises when used with clients” (p. 75). Therapists and their clients should carefully consider privacy issues before agreeing to send email messages to clients’ workplaces or homes. A good policy is to limit email exchanges to basic information such as an appointment time. Courts have ruled that email sent or received on computers used by employees is considered to be the property of the company; therefore, privacy and confidentiality do not exist. Take appropriate measures to safeguard privacy and security when using email. Tran-Lien (2012) offers several tips for therapists regarding email: • Remember that anything sent via email to clients ultimately ends up in their possession and may be shared with third parties at their discretion. • Consider including a confidentiality disclaimer notice stating that the information in the email is confidential and should not be shared with others without authorization from the sender. • Do not email clients on a public computer for privacy and security reasons. This discussion of privacy may seem to be just a matter of common sense, but we have become so accustomed to relying on technology that careful thought is not always given to the subtle ways privacy can be violated. Exercise caution and pay attention to ways you could unintentionally breach the privacy of your clients when using various forms of communication. Apprise your clients of potential problems of privacy regarding a wide range of technology and discuss how they might best contact you between office visits and how you might leave messages for them. Take preventive measures so that both you and your clients understand and have a signed agreement detailing these important concerns. You may face legal problems due to violations of privacy and confidentiality in this era of electronic communication, so it is important to determine whether your liability insurance covers email and other electronic communications with clients (Bradley et al., 2011).

impLiCatiOns Of hipaa fOr mentaL heaLth prOviders The health insurance Portability and Accountability Act of 1996 (hiPAA) was passed by Congress to promote standardization and efficiency in the health care industry and to give patients more rights and control over their health information. HIPAA is a federal law that contains detailed provisions regarding client privacy, informed consent, and transfer of records. Counselors are required to provide clients with a clear written explanation of how health information is used and kept (Remley & Herlihy, 2014). HIPAA includes provisions designed LO4

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to encourage electronic transactions and requires certain new safeguards to protect the security and confidentiality of health information. The hiPAA Privacy Rule was designed to provide a uniform level of privacy and security on the federal level. This Privacy Rule, which applies to both paper and electronic transmissions of protected health information by covered entities, developed out of the concern that transmission of health care information through electronic means could lead to widespread gaps in the protection of client confidentiality. The Privacy Rule requires health plans and other covered entities to establish policies and procedures to protect the confidentiality of health information about their patients. It requires technical, administrative, and physical safeguards to protect security of protected health information in electronic form (Wheeler & Bertram, 2012). The Privacy Rule provides patients with rights concerning how their health information is used and disclosed by health care providers who fall within the domain of HIPAA. Health care providers need to determine whether they are covered entities under HIPAA. If providers transmit any protected health information in electronic form (such as health care claims, health plan enrollment, or coordination of benefits), or if they hire someone to electronically transmit protected health care information, they must comply with all applicable HIPAA regulations (Bennett et al., 2006; Wheeler & Bertram, 2012). If you submit a claim electronically, even once, you are likely to be considered a covered entity for HIPAA purposes. What is a covered entity? Jensen (2003b) explains that there are three types of covered entities: health plans, health care clearinghouses, and health care providers who transmit health information by electronic means. To determine that you are a “covered entity,” you need to answer affirmatively to all three of these questions: 1. Are you a health care provider? 2. Do you transmit information electronically? 3. Do you conduct covered transactions? According to Jensen, if you do not answer “yes” to all of these questions, or if you do not employ someone to conduct the covered transactions for you, then you are not a covered entity and HIPAA does not apply to you. If you want to avoid becoming a covered entity, Jensen (2003e) offers these suggestions: • Do not use your computer to conduct one of the standard/covered transactions. • Use only your telephone, the mail, or your fax machine. • Avoid hiring a person to do your billing services to clients if he or she conducts one of the standard/covered transactions electronically. • Do not allow health plans to communicate with you electronically. • Make certain that health plans communicate with you about clients only by phone, mail, or fax machine. In his article, “HIPAA Overview,” Jensen (2003b) describes the four standards of HIPAA: (1) privacy requirements, (2) electronic transactions, (3) security requirements, and (4) national identifier requirements. Let’s examine each in more detail. Privacy requirements. The Privacy Rule requires practitioners to take reasonable precautions in safeguarding patient information. Licensed health care providers are

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expected to have a working knowledge of and guard patients’ rights to privacy in disclosure of information, health care operations, limiting the disclosure of protected information, payment matters, protected health information, psychotherapy notes and a patient’s medical record, and treatment activities. Electronic transactions. HIPAA aims at creating one national form of communication, or “language,” so that health care providers can communicate with one another electronically in this common language. Security requirements. Minimum requirements are outlined in HIPAA that are designed to safeguard confidential information and prevent unauthorized access to health information of patients. National identifier requirements. It is essential that covered entities be able to communicate with one another efficiently. Health care providers and health plans are required to have national identification numbers that identify them when they are conducting standard transactions. Only mental health providers who fall within the definition of covered entity are subject to HIPAA requirements. Those providers who do not fall within this scope of practice are not required to comply with HIPAA requirements, unless they choose to do so (Jensen, 2003e). Brendel and Bryan (2004) clarify that HIPAA is applicable to practices that utilize electronic transactions, but it is not provider specific. For example, if a psychiatrist works both in a hospital that is subject to HIPAA regulations and in a private practice that does not involve the use of electronic transactions, “the psychiatrist’s practice would be subject to HIPAA regulations for patients seen at the hospital but not for private practice patients” (p. 178). Wheeler and Bertram (2012) suggest that some HIPAA requirements could be good practices from a risk management perspective even if the practitioner is not technically a covered entity. Handerscheid, Henderson, and Chalk (2002) state that HIPAA privacy requirements are meant to protect confidential patient information irrespective of the form in which the information is stored. To comply, covered entities first need to review their routine business practices to assess how well patient information is protected against inappropriate disclosures. The second step involves modifying business policies or practices once any problems are detected. The third step involves working with consumers to inform them of their rights, advise them about providing written authorization for release of information, and describe grievance procedures clients can use if they believe their privacy has been violated.

the duty tO Warn and tO prOteCt Mental health professionals, spurred by the courts, have come to realize that they have a dual professional responsibility: to protect other people from potentially dangerous clients and to protect clients from themselves. Balancing client confidentiality and protecting the public is a major ethical challenge. Wheeler and Bertram (2012) remind us that the competing interests of client privacy and public safety must be assessed by mental health professionals. The American Psychiatric Association (2013b) provides this standard: “When, in the clinical judgment of the treating psychiatrist, the risk of danger is deemed to be significant, LO5

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the psychiatrist may reveal confidential information disclosed by the patient.” (4.8.). In this section we look first at therapists’ responsibilities to protect potential victims from violence and then at the problems posed by clients who are suicidal.

the duty to Protect Potential Victims One of the most difficult tasks therapists grapple with is deciding whether a particular client is dangerous. It is extremely difficult to decide when it is justified to breach confidentiality and notify and protect potential victims. Although practitioners are not generally legally liable for their failure to render perfect predictions of violent behavior of a client, an inadequate assessment of client dangerousness can result in liability for the therapist, harm to third parties, and inappropriate breaches of client confidentiality. Therapists faced with potentially dangerous clients should take specific steps to protect the public and to minimize their own liability. They should take careful histories, advise clients of the limits of confidentiality, keep accurate notes of threats and other client statements, seek consultation, and record steps they have taken to protect others. Practitioners should consult with a supervisor or an attorney because they may be subject to liability for failing to notify those who are in danger. When a client expresses an intention to harm another person, Bennett et al. (2006) recommend making an assessment for suicidal intentions because there is a correlation between suicidal and homicidal behaviors. If a determination is made that an individual poses a high risk for harming an identifiable third party, it is essential to develop and implement an intervention plan. Bennett and colleagues note that it is necessary to continually reevaluate the potential for dangerous behavior with high-risk clients for the duration of therapy and to modify the treatment plan if conditions change. In a thought-provoking article, Mossman (2009) suggests that “violence prediction alone may be a futile approach to reducing violence” (p. 137). Referencing recent rampage shootings in the United States, Mossman points out that in hindsight we often perceive tragedies as being more easily foreseeable than they really were. Although anticipating and intervening to prevent acts of violence seems like a matter of connecting the dots, Mossman points out that the dots (risk factors) we have are imperfect indicators of actual future violent acts. He believes clinical attention should be paid to risk prevention (rather than risk prediction) and that society should seek broad measures aimed at addressing known risks for violent behaviors among people who have and who do not have mental health problems. Nearly every jurisdiction has a different interpretation of the duty to warn and the duty to protect, with some having no statute or case law related to the issues and others with very specific legal guidelines (Welfel et al., 2009). Most states permit (if not require) therapists to breach confidentiality to warn or protect victims. Some states specify how that duty is to be discharged. Some states grant therapists immunity or protection from being sued for breaching confidentiality if the therapist can demonstrate that he or she acted in good faith to notify or protect third parties. A few states have no mandatory duty to warn and to protect third parties, and therapists have no specific grant of immunity from civil suits for breaching confidentiality in those states. In 1999 in the case of Thapar v. Zezulka, the Texas Supreme Court ruled that mental health workers do not have a duty to warn and protect their clients’ known

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and intended victims. Basing its decision on the Texas statute governing the legal duty of mental health professionals to protect clients’ confidentiality, the court found that it was unwise to impose a duty to warn on mental health practitioners. This decision reflected the justices’ reluctance to violate existing state confidentiality statutes. Barbee, Combs, Ekleberry, and Villalobos (2007) suggest that mental health providers in Texas “should proceed with caution in revealing confidential information to anyone for any reason, even when the limits of confidentiality are reached” (p. 18). Given the fact that various states have different interpretations of the duty to warn and protect, the most important message is to know the law in your state. Welfel, Werth, and Benjamin (2009) differentiate between the duty to warn and the duty to protect. The duty to warn applies to those circumstances where case law or statute requires the mental health professional to make a reasonable effort to contact the identified victim of a client’s serious threats of harm, or to notify law enforcement of the threat. The duty to protect applies to situations in which the mental health professional has a legal obligation to protect an identified third party who is being threatened; in these cases the therapist generally has other options in addition to warning the person of harm. The duty to protect provides ways of maintaining the client’s confidentiality; the duty to warn requires a disclosure of confidential information to the person who is being threatened with harm. Welfel, Werth, and Benjamin (2009) state that exercising a duty to warn can result in inappropriate breaches of confidentiality that damage the therapeutic relationship, which can end treatment. Furthermore, this course of action cannot guarantee another person’s safety. Although warning is sometimes the prudent action to take, in many situations warning is not the only option or the best course to follow. Absent specific state laws mandating the duty to warn and to protect, Wheeler and Bertram (2012) believe mental health professionals have an ethical duty to disclose information when it is necessary “to prevent clear and imminent danger to the client or others” (pp. 108–109). They suggest the real question for counselors to ponder is: “How can I fulfill my legal and ethical duties to protect human life, act in the best interest of the client, and remain protected from potential liability” (p. 109)?

implications of landmark Court Cases The responsibility to protect the public from dangerous acts of violent clients entails liability for civil damages when practitioners neglect this duty by (1) failing to diagnose or predict dangerousness, (2) failing to warn potential victims of violent behavior, (3) failing to commit dangerous individuals, or (4) prematurely discharging dangerous clients from a hospital (APA, 1985). The first two of these legally prescribed duties are illustrated in the case of Tarasoff v. Board of Regents of the University of California (1976), which has been the subject of extensive analysis in the psychological literature. The other two duties are set forth in additional landmark court cases. These cases provide case law governing the duty to warn only for the states in which the judgments were made. There is no overarching federal framework regarding these issues.

the Tarasoff Case. In August 1969 Prosenjit Poddar was a voluntary outpatient at the student health service at the University of California, Berkeley and

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was in counseling with a psychologist named Moore. Poddar had confided to Moore his intention to kill an unnamed woman (who was readily identifiable as Tatiana Tarasoff) when she returned from an extended trip in Brazil. In consultation with other university counselors, Moore made the assessment that Poddar was dangerous and should be committed to a mental hospital for observation. Moore later called the campus police and told them of the death threat and of his conclusion that Poddar was dangerous. The campus officers did take Poddar into custody for questioning, but they later released him when he gave evidence of being “rational” and promised to stay away from Tarasoff. He was never confined to a treatment facility. Moore followed up his call with a formal letter requesting the assistance of the chief of the campus police. Later, Moore’s supervisor asked that the letter be returned, ordered that the letter and Moore’s case notes be destroyed, and asked that no further action be taken in the case. Tarasoff and her family were never made aware of this potential threat. Shortly after Tarasoff’s return from Brazil, Poddar killed her. Her parents filed suit against the Board of Regents and the employees of the university for having failed to notify the intended victim of the threat. When a lower court dismissed the suit in 1974, the parents appealed, and the California Supreme Court ruled in favor of the parents in 1976, holding that a failure to warn an intended victim was professionally irresponsible. The court’s ruling requires that therapists breach confidentiality in cases where the general welfare and safety of others is involved. This was a California case, and courts in other states are not bound to decide a similar case in the same way. Under the Tarasoff decision, the therapist must first accurately diagnose the client’s tendency to behave in dangerous ways toward others. This first duty is judged by the standards of professional negligence. In this case the therapist did not fail in this duty. He even took the additional step of requesting that the dangerous person be detained by the campus police. But the court held that simply notifying the police was insufficient to protect the identifiable victim (Laughran & Bakken, 1984). In the first ruling, in 1974, the lower court cited a duty to warn, but this duty was expanded by the 1976 California Supreme Court ruling, which said: “When a therapist determines … that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.” Richard Leslie (2008) states that the “duty” created by the California Supreme Court in the Tarasoff decision was not a “duty to warn.” According to Leslie, this so-called duty to warn has long been a mischaracterization of the actual duty. Rather, the court described the duty simply as a “duty to exercise reasonable care to protect the foreseeable victim” from the serious danger of violence against him or her. According to Jensen (2012), the duty to protect can be discharged in a variety of ways, one of which involves hospitalization, whether voluntary or involuntary. Therapists can protect others through traditional clinical interventions such as reassessment, medication changes, and referral. Other steps therapists may take include warning potential victims, calling the police, or informing the state child protection agency. Negligence lies in the practitioner’s failure to conduct an assessment for potential violence, failure to warn a third party of imminent danger, not in failing to predict any violence that may be committed. The goal of doing an assessment of dangerousness is to arrive at a reasoned and informed judgment about

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a client’s capacity for seriously harming or killing another person: “In other words, you do not have to be perfect in predicting what will happen; you just have to be reasonably competent in assessing for what could happen” (p. 46). The Tarasoff decision made it clear that client confidentiality can be readily compromised; indeed, “the protective privilege ends where the public peril begins” (cited in Perlin, 1997). As Bednar and his colleagues (1991) indicate, the mental health professional is a double agent. Therapists have ethical and legal responsibilities to their clients, and they also have legal obligations to society. These dual responsibilities sometimes conflict, and they can create ambiguity in the therapeutic relationship. Welfel (2013) points out that courts interpret the duty to warn and protect to include situations in which therapists should have known about the danger. If ignorance about a dangerous situation is the result of incompetent or negligent practice, then professionals have neglected this duty. “The courts simply do not view incompetence or negligence as an adequate defense against a claim of failure to protect” (p. 134). State courts and legislatures vary in their interpretations of Tarasoff, and practitioners remain uncertain about the nature of their duty to protect or to warn. However, the codes of ethics of most mental health professions incorporate this concept, and it is generally assumed that the duty to warn and to protect is a federal legal requirement. Although state laws differ on the specifics of notifying intended victims, for the most part psychotherapists are required to take proactive steps when a client reveals a serious intention of harming another person (Knapp & VandeCreek, 2012). Mandatory reporting laws only apply to threats regarding future violence (Barnett &

Johnson, 2010). Reports by clients of past violence may not be reported and are protected as confidential information. So “what are the mental health professional’s obligations when a client discloses in a psychotherapy session having burglarized a home or office, having raped someone, or even having murdered someone” (Walfish, Barnett, Marlyere, & Zielke, 2010, pp. 316–317)? Interested in the incidence of such disclosures, Walfish and his colleagues conducted a study of 162 doctoral-level psychologists with the following results: 13% of the respondents said that on at least one occasion a client revealed that he or she had murdered a person; 33% had clients who admitted to an unprosecuted incident of sexual assault; and more than 33% reported having clients who acknowledged an unprosecuted incident of physical assault. A large majority of these psychologists (80.1%) felt they understood their legal obligations after hearing their clients’ disclosures of past violence, but 19.9% did not feel sufficiently informed about how they should handle such disturbing disclosures. Mental health professionals should be familiar with the warning signs and risk factors for violence and the potential for acting out. Barnett and Johnson (2010) and Jensen (2012) recommend that therapists conduct a formal risk assessment with all clients who show any warning signs for violence. Therapists should be familiar with the treatment options and resources for managing high-risk clients in their local area. The first critical step in applying Tarasoff is to assess for dangerousness (Jensen, 2012). This assessment may lead you to the conclusion that your client poses a serious risk of killing or physically injuring another person. If this judgment is made, your records need to reflect why you believe your client is reasonably likely to commit violence. Therapists are often concerned about legal responsibility when the identity of the intended victim is unknown. VandeCreek and Knapp (2001) recommend

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seeking consultation with other professionals who have expertise in dealing with potentially violent people and documenting the steps taken. They add that therapists do well to adhere to risk management strategies in dealing with dangerous clients. In particular, therapists need to be especially careful about grounds for liability including abandonment; failure to consult, refer, or coordinate treatment with a physician; maintaining adequate records; and responding appropriately if a suit is filed. In Ewing v. Goldstein (2004) the California courts broadened the practitioner’s duty to warn by declaring that therapists must break confidentiality if they receive information from a family member about a client’s intention to seriously harm another person (Nagy, 2011). This court decision means that licensed therapists in California could be held liable for failure to issue a Tarasoff warning when the information regarding the dangerousness of a client comes from a client’s family member rather than from the client. “Ultimately Tarasoff comes down to two responsibilities: assessing for violence, and if the assessment reveals the likelihood of violence, discharging the duty to protect” (Jensen, 2012, p. 50).

the Bradley Case. A second case illustrates the duty not to negligently release a dangerous client. In Bradley Center v. Wessner (1982) the patient, Wessner, had been voluntarily admitted to a Georgia facility for psychiatric care. Wessner was upset over his wife’s extramarital affair. He had repeatedly threatened to kill her and her lover and had even admitted to a therapist that he was carrying a weapon in his car for that purpose. He was given an unrestricted weekend pass to visit his children, who were living with his wife. He met his wife and her lover in the home and shot and killed them. The children filed a wrongful death suit, alleging that the psychiatric center had breached a duty to exercise control over Wessner. The Georgia Supreme Court ruled that a physician has a duty to take reasonable care to prevent a potentially dangerous patient from inflicting harm (Laughran & Bakken, 1984).

the JaBlonski Case. A third legal ruling underscores the duty to commit a dangerous individual. The intended victim’s knowledge of a threat does not relieve therapists of the duty to protect, as can be seen by the decision in Jablonski v. United States (1983). Meghan Jablonski filed suit for the wrongful death of her mother, Melinda Kimball, who was murdered by Philip Jablonski, the man with whom she had been living. Earlier, Philip Jablonski had agreed to a psychiatric examination at a hospital. The physicians determined that there was no emergency and thus no basis for involuntary commitment. Kimball later again accompanied Jablonski to the hospital and expressed fears for her own safety. She was told by a doctor that “you should consider staying away from him.” Again, the doctors concluded that there was no basis for involuntary hospitalization and released him. Shortly thereafter Jablonski killed Kimball. The Ninth U.S. Circuit Court of Appeals found that failure to obtain Jablonski’s prior medical history constituted malpractice. The essence of Jablonski is a negligent failure to commit (Laughran & Bakken, 1984).

the Hedlund Case. A fourth legal ruling, Hedlund v. Superior Court (1983), extends the duty to warn in California to a foreseeable, identifiable person who might be near the intended victim when the threat is carried out and thus might also be

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in danger. LaNita Wilson and Stephen Wilson had received psychotherapy from a psychological assistant, Bonnie Hedlund. During treatment Stephen Wilson told the therapist that he intended to harm LaNita Wilson. Later he did assault her, in the presence of her child. The allegation was that the child had sustained “serious emotional injury and psychological trauma.” In keeping with the Tarasoff decision, the California Supreme Court held (1) that a therapist has a duty first to exercise a “reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members [of that professional specialty] under similar circumstances” in making a prediction about the chances of a client’s acting dangerously to others; and (2) that therapists must “exercise reasonable care to protect the foreseeable victim of that danger.”One way to protect the victim is by giving a warning of peril. The court held that breach of such a duty with respect to third persons constitutes “professional negligence” (Laughran & Bakken, 1984). In the Hedlund case the duty to warn of potentially dangerous conduct applied to the mother, not to her child, against whom no threats had been made. However, the court found that a therapist could be held liable for injuries sustained by the intended victim’s child if the violent act was carried out. The court held that a therapist must consider the welfare of the intended victim as well as the welfare of persons in close relationship to the victim when determining how to best protect the potential victim.

guidelines for dealing With dangerous Clients Most counseling centers and community mental health agencies now have guidelines regarding the duty to warn and protect when the welfare of others is at stake. These guidelines generally specify how to deal with emotionally disturbed individuals, violent behavior, threats, suicidal possibilities, and other circumstances in which counselors may be legally and ethically required to breach confidentiality. In response to the April 16, 2007, school shooting on the Virginia Tech campus in which 33 people were killed, task forces were formed in several states to create significant changes to the policies and procedures at college counseling centers and campus security offices (Davenport, 2009). According to Davenport, “what constitutes ‘risk’ on our college campuses is continually changing and intensifying” (p. 181), leading college counselors to increasingly adopt the role of risk managers. As clinicians, we believe one of the problems with being able to piece together a true picture of potential for violence is a lack of communication between all parties working with, or on behalf of, a potentially violent client. Counselors working with potentially high-risk clients should have a release of information in place so a more complete picture of the client’s level of functioning can be determined. The dangerous behaviors or warning signs may be witnessed in one or more arenas, but key health care workers often do not have permission to speak to one another. Understandably, many counselors find it difficult to predict when clients pose a serious threat to others. Clients are encouraged to engage in open dialogue in therapeutic relationships. Many clients express feelings or thoughts about doing physical harm to others, but few of these threats are ever carried out. Counselors should not be expected to routinely reveal all verbal threats (Bennett et al., 2006). Notifying a third party of a threat is a relatively rare event. Breaking confidentiality can seriously harm the client–therapist relationship as well as the relationship between LO7

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the client and the person “threatened.” Such disclosures should be carefully evaluated. In making decisions about when to warn, counselors should seek consultation, exercise reasonable professional judgment, and apply practices that are commonly accepted by professionals in the specialty. Practitioners often lack knowledge of their ethical and legal duties in dealing with potentially dangerous clients. Pabian, Welfel, and Beebe (2009) examined psychologists’ knowledge of their legal and ethical responsibilities with dangerous clients and found that most (76% of respondents) were misinformed about their state’s laws pertaining to Tarasoff-type situations. Many believed they had a legal duty to warn when they did not; others assumed that warning was their only legal option, when other less intrusive interventions were possible. Pabian and colleagues found no significant relationship between legal knowledge and continuing education in legal and ethical issues, graduate training in ethics, or clinical experience in working with clients who posed a danger to others. They concluded that educational experiences during and after graduate school do not seem to be meeting the needs of professionals in understanding state laws and ethical duties regarding dangerous clients. In most cases therapists will not have advanced warning that a client is dangerous. Therefore, therapists must be prepared for such an eventuality. We offer the following suggestions: • Examine your informed consent document. Is it clear in terms of the forfeiture of confidentiality because of a threat of violence to self or others? • Know how to contact the legal counsel of your professional organization. • Review the code of ethics of your professional organization on matters applicable to your practice. • Familiarize yourself with professionals who are experienced in dealing with violence and know how to reach them. • In the initial interview, if there is any hint of violence in the client’s history, request clinical records from previous therapists, if they exist. • Take at least one workshop in the assessment and management of dangerous clients. • Determine that the limits of your professional liability insurance are adequate. Wheeler and Bertram (2012) suggest some practical risk management guidelines in dealing with duty to warn and protect situations: • Consult with colleagues or a supervisor. • Consult with an attorney if you are not clear about your legal duty. • Know the law in your state and whether it requires a communicated threat against a specifically identifiable victim or if it encompasses a broader duty. • Obtain prior medical and behavioral history. • Inquire about a client’s access to weapons, homicidal ideation, and intentions, which would include whether a specific victim is involved. • In cases of immediate threat by a client, do not hesitate to take steps to prevent harm to yourself even if it means potentially fracturing your relationship with the client.

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Make referrals where appropriate. • Consider all appropriate steps to take and the consequences of each. • Know and follow the policy of your institution. • Document all the actions you take, those you reject, and the rationale behind each of your decisions. If you have prepared yourself for the eventuality of a dangerous client, you will have a better sense of what to do in these circumstances. In addition, your liability will be reduced if you have followed a prudent course of action and can demonstrate that you acted within the standard of care expected of a competent mental health professional. As you think about the following case, ask yourself how you would assess the degree to which Isaac is potentially dangerous. What would you do if you were the therapist in this case?

The case of Isaac. Isaac has been seeing Dr. Schultz, his therapist, for several months. One day he comes to the therapy session inebriated and very angry. He has just found out that a close friend is having an affair with his girlfriend. He is deeply wounded over this incident. He is also highly agitated and even talks about killing the friend who betrayed him. As he puts it, “I am so damn mad I feel like getting my gun and shooting him.” Isaac experiences intense emotions in this session. Dr. Schultz does everything she can to defuse his rage and to stabilize him before the session ends. The session continues for about 2 hours (instead of the usual hour), and she asks him to call her a couple of times each day to check in. Before he leaves, she contracts with him that he will not go over to this man’s house and that he will not act out his urges. Because of the strength of the therapeutic relationship, she assessed Isaac as not being a violent person and decided not to follow through with the duty to warn. He follows through and calls her every day. When he comes to the session the following week, he admits to still being in a great deal of pain over his discovery, but he no longer feels so angry. As he puts it, “I am not going to land in jail because of this jerk!” He tells Dr. Schultz how helpful the last session was in allowing him to get a lot off his chest. • Do you think Dr. Schultz followed the proper ethical and legal course of action in this case? • Did she fulfill her responsibilities by making sure that Isaac called her twice a day? • Some would say that she should have broken confidentiality and warned the intended victim. What do you think? Explain your reasoning. • What criteria could you use to determine whether the situation is dangerous enough to warn a potential victim? What is the fine line between overreacting and failing to respond appropriately in this kind of case? • If Dr. Schultz had sought you out for consultation in this case immediately after the session at which Isaac talked about wanting to kill his friend, how would you have advised her? • Is there any evidence that Dr. Schultz acted negligently in any way?

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Commentary. Dr. Schultz did an assessment of dangerousness and received several commitments from Isaac to restrain his behavior. Although a verbal threat of the intent to harm another person is a key factor, other factors to consider include the context in which the threat is made, the intent, Isaac’s history of violence, use of drugs and alcohol, and the availability of opportunity. Dr. Schultz’s assessment that Isaac was not dangerous was based on her five-month relationship with him and her trust in him to honor their agreements. From both an ethical and legal perspective, it is critical that Dr. Schultz seek consultation in the process of making her decision on how to deal with Isaac’s threat. Dr. Schultz may be less inclined to see Isaac as violent, even if he is, because of her therapeutic relationship with him. By not consulting with colleagues, Dr. Schultz potentially put herself, her client, and others at risk.

implications of duty to Warn and to Protect for school Counselors The basic standard of care for school counselors is clear; courts have uniformly held that school personnel have a duty to protect students from foreseeable harm (Hermann & Remley, 2000). The duty to protect vulnerable children is also a wellarticulated standard in the field of psychology. The school psychologist is in the position of assessing how the frequency, intensity, or duration of a risk-taking behavior contributes to the potential for harm to the student or others (Rae, Sullivan, Razo, & Garcia de Alba, 2009). School personnel may need to act on student reports of their peers’ plans related to intended violence. Furthermore, school officials may be held accountable if a student’s writing assignments contain evidence of premeditated violence. Hermann and Finn (2002) contend that school counselors are legally and ethically obligated to work toward preventing school violence. They state that school counselors may find themselves legally vulnerable because of their role in determining whether students pose a risk of harm to others and deciding on appropriate interventions with these students. Current case law reveals that all indicators of potential violence should be taken seriously. Fein, Carlisle, and Isaacson (2008) note that school counselors have felt inadequately prepared to respond to major school incidents or disasters. Moyer, Sullivan, and Growcock (2012) suggest that ethics codes “provide no explanation as to what constitutes a potentially disruptive or damaging behavior, and individual school counselors are likely to interpret this differently” (p. 98). Despite the lack of guidance in the codes, preventing students from harming other students seems to be implicit in the duty of school personnel. Courts have consistently found that school counselors have a duty to exercise reasonable care to protect students from foreseeable harm, but they are only exposed to legal liability if they fail to exercise reasonable care (Hermann & Remley, 2000). School counselors try to provide a safe place for students to disclose their personal problems, but these counselors also have a reporting duty in many instances. School counselors need to assess a student’s dangerousness by evaluating the student’s plans for implementing the violent act and his or her ability to carry out the act. Moyer, Sullivan, and Growcock (2012) surveyed school counselors to get their impressions of when it is ethical to inform administrators about risky student behaviors. In their study, counselors deemed it more ethical to break confidentiality when the LO8

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behaviors were directly observed rather than when reported by students and when the risk-taking behaviors occurred during school hours on the school campus. These counselors also showed a greater willingness to breach confidentiality when they were supported by written school policies guiding their interventions. Given the context of emerging case law and the violent climate of today’s schools, school counselors would do well to take threats of violence seriously. The central ethical concern surrounding this issue involves the commitment of mental health professionals to develop organized prevention efforts in response to school violence. School counselors and mental health professionals must be prepared to respond to crises when they do occur. “Campus mass killings and the terrorist strategies employed by both rage-filled students and adults have forced American educators, including … school counselors, to prepare for and deal with assault situations” (Fein et al., 2008, p. 246.) Given the high level of visibility of school violence today, Fein and colleagues suggest that school counselors be prepared to lead and to assume responsibilities that may be beyond the scope of their formal training. They may have to respond to the needs and demands of students, staff, and administrators and adopt multiple roles, which may create inherent role conflicts. Fein and colleagues also suggest that school counselors may need to employ subtle counseling when interacting with leaders, such as school superintendents, who may be experiencing anxiety about events over which they have little or no control. Counselors are advised to avoid becoming casualties themselves by neglecting their own need to debrief with trained personnel after three- to four-hours of working a critical incidence response shift. The following case illustrates a challenge school counselors might face in dealing with students who pose a danger to others.

The case of Blaise. Blaise is a high school student who seems to have the potential for violence. During his sessions with you, he talks about his impulses to hurt others and himself, and he describes times when he has seriously beaten his girlfriend, Lucy. He tells you that she is afraid to leave him because she thinks he will beat her even more savagely. He later tells you that sometimes he gets so angry that he feels like killing her. You believe Blaise could seriously harm and possibly even kill Lucy. Which of the following would you do? Check all that apply. ___1. I would notify Lucy that she might be in grave danger, if I knew of her identity. ___2. I would notify the police or other authorities. ___3. I would keep Blaise’s threats to myself because I could not be sure that he would act on them. ___4. I would seek a second opinion from a colleague. ___5. I would inform my director or supervisor. ___6. I would refer Blaise to another therapist. ___7. I would arrange to have Blaise hospitalized. Would you answer differently if Blaise showed real promise in therapy and seemed to really want to change his behavior?

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Commentary. Because Blaise is voluntarily seeing a therapist and is disclosing his impulses and behavior, he may want to change. However, you must consider specific actions, comments, and threats that Blaise has made in determining the appropriate course of action to take. He has seriously beaten Lucy and she is afraid to leave him. He also tells you that sometimes he gets so angry that he feels like killing her, and you believe he is capable of this violence. The seriousness of Blaise’s actions poses a clear danger to others, which you cannot ethically or legally ignore. Notifying the police may be in order because Lucy cannot be relied upon to inform the police. You may be able to continue therapy after notifying the police if Blaise agrees to this, or you can help him find other appropriate resources, such as an anger management program.

the duty to Protect suicidal Clients In the preceding discussion we emphasized the therapist’s obligation to protect others from dangerous individuals. The guidelines and principles outlined in that discussion often apply to the client who poses a danger to self. As part of the informed consent process, therapists must inform clients that they have an ethical and legal obligation to break confidentiality when they have good reason to suspect suicidal behavior. Even if clients argue that they can do what they want with their own lives, including taking them, therapists have a legal duty to protect suicidal clients. The crux of the issue is knowing when to take a client’s hints seriously enough to report the condition. Certainly not every mention of suicidal thoughts or feelings justifies extraordinary measures. The evaluation and management of suicidal risk can be a source of great stress for therapists. Clinical practitioners must face many troublesome issues, including their degree of influence, competence, level of involvement with a client, responsibility, legal obligations, and ability to make life-or-death decisions. If a client dies by suicide, the risk of a malpractice action is greatly reduced if the therapist can demonstrate that a reasonable assessment and intervention process took place; professional consultation was sought; clinical referrals were made when appropriate; and thorough and current documentation was done (Jobes & O’Connor, 2009). Counselors can be accused of malpractice for neglecting to take action to prevent harm when a client is likely to take the step of suicide, yet they are also liable if they overreact by taking actions that violate a client’s privacy when there is not a justifiable basis for doing so (Remley & Herlihy, 2014). The law does not require practitioners to always make correct assessments of suicide risk, but therapists do have a legal duty to make assessments from an informed position and to carry out their professional obligations in a manner comparable to what other reasonable professionals would do in similar situations. If a counselor makes a determination that a client is at risk for suicide, the counselor should take the least intrusive steps necessary to prevent the harm (Remley & Herlihy, 2014). Consult with experienced colleagues when you are faced with clients who are at risk for self-harm, and be sure to document the nature of your discussions with colleagues. LO9

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school Counselor liability for student suicide Suicide by a student is perhaps the greatest tragedy on a campus, and one that shocks the entire school community. Recognizing signs of potential suicide and preventing suicide certainly have to be among the major challenges school counselors face. School counselors are expected to be aware of the warning signs of suicidal behavior and need to have the skills necessary to assess a student’s risk for suicide (Capuzzi & Gross, 2008). To manage the legal risks associated with their jobs, school counselors must be prepared to determine whether a student may be at risk for suicide (Capuzzi, 2009). In her study of legal issues encountered by school counselors, Hermann (2002) reports the most prevalent legal issue involves school counselors determining whether students are suicidal. Hermann found that almost three fourths (72%) of the school counselors surveyed believed they were well prepared to determine whether a client was suicidal. King and colleagues (2000) studied (1) whether high school counselors knew the risk factors associated with suicidal behavior, and (2) whether these counselors knew the appropriate steps to take in intervening with a student who expressed suicidal ideation, had a specific plan, and had the lethal means to carry out the plan. King and colleagues found that the majority of the high school counselors surveyed were knowledgeable about risk factors of adolescent suicide and knew the appropriate steps to take when a student gave indications of suicidal ideation. School counselors who do not possess competency in identifying and managing students who may be suicidal need supervision, consultation, and direction from counselors who possess such expertise (Remley, 2009). Although school counselors are not expected to predict all suicide gestures or attempts, they are expected to use sound judgment in making clinical decisions, and their reasoning should be documented in their notes. In cases where school counselors make an assessment that a student is at risk for suicide, it is imperative that the student’s parents or guardians be notified that such an assessment took place. Parents or guardians have a legal right to know when their child may be in danger.

COurt Cases. In school settings, courts have found a special relationship between school personnel and students. Hermann (2001) has documented this, and our discussion is based on her work. One of the first cases that addressed school counselor liability for student suicide was Eisel v. Board of Education (1991). In this case, 13-yearold Nicole was involved in Satanism. Nicole made a suicide pact with another student, who subsequently shot Nicole and then shot herself. Fellow students had told their school counselor that Nicole wanted to take her own life. When the school counselor confronted Nicole about her suicidal intentions, she denied making any such statements. The counselor did not attempt to contact Nicole’s parents. In Eisel the court found that school counselors have a duty to use reasonable means to attempt to prevent a suicide when they know about a student’s suicidal intentions. The reasoning of the court was that an adolescent is more likely to share thoughts of suicide with friends than with a school counselor, teacher, or parent. The court found that reasonable care would have included notifying Nicole’s parents that their daughter was at risk for suicide. Although the suicide occurred off the school premises, the court held that legally the school could be held liable for failure to exercise reasonable care to prevent a foreseeable injury.

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Even if the risk of the student actually committing suicide is remote, the possibility may be enough to establish a duty to contact the parents or the guardians and to inform them of the potential for suicidal behavior. Courts have found that the burden involved in making a telephone call is minor considering the risk of harm to a student who is suicidal. In short, school personnel are advised to take every suicide threat seriously and to take every precaution to protect the student. The courts have addressed the need for training school employees in suicide prevention. The Wyke v. Polk County School Board (1997) case involved a 13-yearold named Shawn, who attempted suicide two times at school before finally killing himself at home. School officials were aware of the suicide attempts, yet they failed to notify Shawn’s mother. During the trial, several experts in the field of suicide prevention testified about the need for suicide prevention training in schools, including mandatory written policies requiring parental notification, holding students in protective custody, and arranging for counseling services. The experts who testified at the trial believed the school board failed to provide adequate training for school personnel. Without training, school personnel will most likely underestimate the lethality of suicidal thoughts, statements, and attempts. The conclusion of this expert testimony was that Shawn would not have committed suicide if the employees had been adequately trained. Persuaded by this input, the court held that the school could be found negligent for failing to notify the decedent’s mother. If you are aiming for a career as a school counselor, you will need more than this basic knowledge regarding your ethical and legal obligations to respond in a professional manner in situations where students may pose a danger to themselves or others. Continuing education is of the utmost importance, as is your willingness to seek appropriate consultation when you become aware of students who are at risk.

The case of Vijay. Vijay, a 16-year-old high school student, is being seen by the school psychologist, Roshawn, at the request of his parents. Vijay’s school work has dropped off, he has become withdrawn socially, and he has expressed to his parents that he has thought of suicide, even though he has not made a specific plan. After the psychologist has seen Vijay for several weeks of individual counseling, his concerned parents call and ask how he is doing. They wonder whether they should be alert to possible suicide attempts. Vijay’s parents tell Roshawn that they want to respect confidentiality and are not interested in detailed disclosures but that they want to find out if they have cause for worry. Without going into detail, Roshawn reassures them that they really do not need to worry. • Is Roshawn’s behavior ethical? Would it make a difference if Vijay were 25 years old? • Does Roshawn have an ethical obligation to inform Vijay of the conversation with his parents? • If the parents were to insist on having more information, does Roshawn have an obligation to say more?

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Did Roshawn have sufficient information to justify telling the parents that they have no need to worry? • If Roshawn provides details to the parents, does he have an obligation to inform Vijay before talking with his parents? • Would Roshawn be remiss if he had not informed Vijay about the limits of confidentiality? • Other than doing what this school psychologist did, do you see other courses of action? • If Vijay were indeed suicidal, what ethical and legal obligations would Roshawn have toward the parents? Would he have to inform the school principal? Commentary. This case shows the importance of knowing the law in your state or jurisdiction pertaining to confidentiality in counseling minors. What are the rights of the parents/guardians? What are the minor client’s rights? To prevent later misunderstandings, it is good practice initially to have a dialogue with both the minor client and the parents/guardians regarding what details may be shared regarding the progress of therapy. A discussion of the limits of confidentiality is also in order. Good practice also involves informing the minor client of any times when there is a discussion between the parents and the therapist. When Vijay’s parents asked the therapist for information, they could have been invited to a session with their son (with his permission) to express their concerns with him being present. This would enable Vijay to be part of the discussion and, with the counselor’s help, to choose what to disclose directly to his parents.

guidelines for Assessing suicidal behavior Mental health professionals cannot predict or prevent all client suicides, but they can learn to recognize common crises that may precipitate a suicide attempt and reach out to people who are experiencing these crises. Counselors must take the “cry for help” seriously. Mental health professionals are expected to complete a comprehensive assessment of clients, especially with clients who pose a threat to themselves. Suicide risk assessment requires clinicians to identify client risk factors, warning signs, and protective factors that can work to mitigate the risk. Learning about these warning signs and risk factors is a key component of assessing for suicidal behavior (Granello, 2010). Wheeler and Bertram (2012) assert that therapists who fail to conduct an adequate assessment of a client are vulnerable to a malpractice claim. If a client denies suicidal intent, yet shows evidence of serious depression, the therapist should inquire further and possibly make a referral to a psychiatrist for further evaluation. In an assessment interview, it is important to focus on evaluating depression, suicide ideation, suicide intention, suicide plans, and the presence of any risk factors associated with suicide. Granello (2010) notes that it is critical to uncover a client’s underlying message because there are as many reasons for a suicide as there are suicidal individuals. Understanding the underlying message will determine, to a great extent, the interventions to use. In the assessment, it is useful to obtain information about a client’s past treatment. In crisis counseling, assess your clients for suicidal risk during LO10

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the early phase of therapy, and keep alert to this issue during the course of therapy. Danger signs, such as the following, should be evaluated: • Take direct verbal warnings seriously, as they are one of the most useful single predictors of a suicide. Be sure to document your actions. • Find out if there were previous suicide attempts, as these are the best single predictor of lethality. • Identify clients suffering from depression, a characteristic common to all suicide victims. Sleep disruption, which can intensify depression, is a key sign. For people with clinical depression the suicide rate is about 20 times greater than that of the general population. • Be alert for feelings of hopelessness and helplessness, which seem to be closely associated with suicidal intentions. Explore the client’s ideational and mood states. Individuals may feel desperate, guilt-ridden, and worthless. • Explore carefully the interpersonal stressor of loss and separation, such as a relationship breakup or the death of a loved one. • Monitor severe anxiety and panic attacks. • Ascertain whether there has been a recent diagnosis of a serious or terminal health condition. • Determine whether the individual has a plan. The more definite the plan, the more serious is the situation. Suicidal individuals should be asked to talk about their plans and be encouraged to explore their suicidal fantasies. • Identify clients who have a history of severe alcohol or drug abuse, as they are at greater risk than the general population. Alcohol is a contributing factor in one fourth to one third of all suicides. • Be alert to client behaviors such as giving away prized possessions, finalizing business affairs, or revising wills. • Determine whether clients have a history of previous psychiatric treatment or hospitalization. Clients who have been hospitalized for emotional disorders are more likely to be inclined to suicide. • Assess the client’s support system. If there is no support system, the client is at greater risk. • Ascertain whether there has been any suicide in the family. Therapists have the responsibility to prevent suicide if they can reasonably anticipate it. Once it is determined that a client is at risk for serious harm to self, the professional is legally and ethically required to take appropriate action aimed at protecting the person. Liability generally arises when a counselor fails to act in such a way as to prevent the suicide or when a counselor does something that might contribute to it. Obtain consultation from knowledgeable colleagues or from clinical supervisors (Wheeler & Bertram, 2012). Counselors with limited experience in suicide assessment should not rely on their own clinical judgment; rather, they should seek consultation and supervision from professionals with experience in this area. Mental health professionals are expected to make their assessments from an informed position and to fulfill their obligations to a client by acting in a professional manner

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(Remley & Herlihy, 2014). Even seasoned clinicians benefit from consultation on their assessment and decisions when dealing with potentially suicidal individuals (Granello, 2010). Remley (2004) states that therapists’ clinical decisions and their reasoning should be recorded in their notes. The final decision about the degree of suicidal risk is a subjective one that demands professional judgment. According to VandeCreek and Knapp (2001), in evaluating liability the courts assess the reasonableness of professional judgment in treating a suicidal person. If a client demonstrates suicidal intent, and the therapist does not exercise reasonable precautions, there are grounds for liability. Knapp and VandeCreek (2012) state that if a client makes a serious declaration of ending his or her life, the therapist is justified in intervening rapidly by voluntary hospitalization or other measures to protect the client.

steps in suiCide preventiOn. Suicidal individuals often hope that somebody will listen to their cry. Many are struggling with short-term crises, and if they can be given help in learning to cope with the immediate problem, their potential for suicide can be greatly reduced. Expectations for action by mental health professionals dealing with suicidal clients differ depending on the setting. In school settings, the law imposes a duty to take precautions to protect students who may be suicidal. A similar standard exists in hospital settings. However, legal opinions are not consistent when addressing suicidal clients in outpatient settings. It should be noted that successful lawsuits have been brought against therapists who did not follow standard procedures to protect a client’s life (Austin, Moline, & Williams, 1990). The following are recommendations for managing suicidal behavior (see Austin et al., 1990; Barnett & Johnson, 2008, 2010; Bednar et al., 1991; Bennett et al., 1990, 2006; Bonger, 2002; Granello, 2010; Peruzzi & Bongar, 1999; Pope & Vasquez, 2011; Remley, 2004, 2009; Remley & Herlihy, 2014; Rosenberg, 1999; Sommers-Flanagan & Sommers-Flanagan, 1995; Wheeler & Bertram, 2012): • Know how to determine whether a client may be at risk for attempting suicide. • Assess each new client for suicidal thoughts, regardless of the reason the client is seeking counseling. • Deal candidly with matters of confidentiality, privilege, and privacy. • Be knowledgeable about the legal requirements bearing on mandatory reporting of suicidal clients and limits of confidentiality in your jurisdiction. • Clearly outline the limits of confidentiality and the steps you will need to take if your client poses a risk of self harm. • Obtain education, training, and supervision in suicide risk assessment, suicide prevention, and crisis intervention methods. • Keep up to date with current research, theory, and practice regarding suicide prevention. • Work with the suicidal client to create a supportive environment. • Periodically collaborate with colleagues and ask for their views regarding the client’s condition. Consult with as many colleagues as possible when making

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difficult decisions and document these discussions. This collaboration can be critical in understanding the level of risk. • Consult with and involve family members and significant others, when appropriate. • Attempt to secure a contract from the client that he or she will not try to commit suicide, but recognize that the existence of a contract will not be a sufficient “defense” if a court determines that more significant intervention was required of the therapist to prevent suicide. • Specify your availability to your clients; let them know how they can contact you during your absences. • Realize that you may have the responsibility to prevent suicide if the act can be reasonably foreseen. • Recognize the limits of your competence and know when and how to refer. • Use sensitivity and caution in terminating or referring a client who has been or is currently suicidal. Be careful to ensure that this transition goes smoothly and that the client does not feel abandoned in the process. • Consider hospitalization, weighing the benefits and the drawbacks. • For services that take place within a clinic or agency setting, ensure that clear and appropriate lines of responsibility are explicit and are fully understood by everyone. • Work with clients so that dangerous instruments are not within easy access. If the client possesses any weapons, put them in the hands of a third party. • Consider increasing the frequency of the counseling sessions. • Work with clients’ strengths and desires to remain alive. • Attempt to communicate a realistic sense of hope. • Be willing to communicate your caring. • As much as possible, involve the client in the decisions and actions being taken. It is important for clients to share in the responsibility for their ultimate decisions. • Document the client’s mental status, your ongoing risk assessments, and your treatment plan decisions in the client’s record. Document options you considered, options you ruled out, actions taken, results of your interventions, and follow-up. “According to the law, a suicide risk assessment that is not documented did not happen” (Granello, 2010, p. 368). • Know your personal limits and your own reactions to working with suicidal clients. Recognize the stresses involved and the toll this work takes on you personally and professionally. Seek appropriate consultation, practice self-care, and try to limit the number of suicidal clients with whom you work. • Attempt to develop a supportive network of family and friends to help clients face their struggles. Discuss this with clients and enlist their help in building this resource of caring people. Remember that clients are ultimately responsible for their own actions and that there is only so much that you can reasonably do to prevent self-destructive actions.

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Even though you take specific steps to lessen the chances of a client’s suicide, the client may still take this ultimate step. The courts recognize that not all suicides are preventable, and they tend to support mental health practitioners who make consistent and systematic efforts to protect their clients (Granello, 2010). What is your position with respect to your ethical obligations to recognize, evaluate, and intervene with potentially suicidal clients? To what degree do you agree with the guidelines discussed in this chapter? Which guidelines make the most sense to you? After clarifying your own thoughts underlying the professional’s role in assessing and preventing suicide, reflect on the following case of a client who is contemplating suicide.

The case of Emmanuel. Emmanuel is a middle-aged widower who complains of emptiness in life, loneliness, depression, and a loss of the will to live. He has been in individual therapy for 7 months with a psychologist. Using psychodiagnostic procedures, she has determined that Emmanuel has serious depressive tendencies and is potentially self-destructive. In their sessions he talks about the history of his failures, the isolation he feels, the meaninglessness of his life, and his feelings of worthlessness and depression. With her encouragement he experiments with new ways of behaving in the hope that he will find reasons to go on living. Finally, after 7 months of searching, he decides that he wants to take his own life. He tells his therapist that he is convinced he has been deluding himself in thinking that anything in his life will change for the better and that he feels good about deciding to end his life. He informs her that he will not be seeing her again. The therapist expresses her concern that Emmanuel is very capable of taking his life. She acknowledges that the decision to end his life by suicide is not a sudden one, but she lets him know that she wants him to give therapy more of a chance. He says that he is truly grateful to her for helping him. He says firmly that he does not want her to attempt to obstruct his plans in any way. She asks that he postpone his decision for a week and return to discuss the matter more fully. He tells her he isn’t certain whether he will keep this appointment, but he agrees to consider it. The therapist does nothing further. During the following week she hears from a friend that Emmanuel has ended his own life. • What do you think of the way the therapist dealt with her client? • What would you have done differently if you had been Emmanuel’s therapist? • How would your viewpoint regarding suicide influence your approach with Emmanuel? • What personal values or issues of your own would be triggered by this case? • Which of the following actions might you have pursued? ____ Committed him to a state hospital for observation, even against his will, for 72 hours ____ Consulted with another professional as soon as he began to discuss suicide as an option ____ Respected his choice of suicide, even if you did not agree with it ____ Informed the police and reported the seriousness of his threat

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____ Informed members of his family of his intentions, even though he did not want you to ____ Bargained with him in every way possible in an effort to persuade him to keep on trying to find some meaning in life Discuss in class any other steps you could have taken in this case. Commentary. Although prediction of both danger to others and to self is difficult, courts may impose liability on therapists who predict incorrectly. Suicidal clients, like dangerous clients, pose a high risk for therapists. In Emmanuel’s case, we would report the client’s suicidal intent to the most appropriate authority in his jurisdiction (a mental health evaluation team or the police department). In light of the fact that Emmanuel is not terminally ill and is suffering from depression, this course of action is required both ethically and legally.

prOteCting ChiLdren, the eLderLy, and dependent aduLts frOm harm Mental health providers have an ethical and legal obligation to protect children, older adults, and dependent adults from abuse and neglect. Whether you work with children or adults in your practice, you are expected to know how to assess potential abuse and to report it in a timely fashion. Confidentiality does not apply in cases of child abuse and neglect, nor does it apply in cases of elder and dependent adult abuse. Such matters constitute a situation of reportable abuse. If children, the elderly, or other dependent adults disclose that they are being abused or neglected, the professional is required to report the situation under penalty of fines and imprisonment. If adults reveal in a therapy session that they are abusing or have abused their children, the matter must be reported. The practice of mandatory reporting is designed to encourage reporting of any suspected cases of child, elder, or dependent adult abuse; thus, therapists are advised to err on the side of reporting in uncertain circumstances (Benitez, 2004). The goal of reporting is to protect the child or older person who is being abused. The professional has an obligation to protect those who cannot advocate for themselves. In 1974 Congress enacted the National Child Abuse Prevention and Treatment Act (PL 93–247), which defines child abuse and neglect as follows: Physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child under the age of eighteen or the age specified by the child protection law of the state in question, by a person who is responsible for the child’s welfare, under circumstances which indicate that the child’s health or welfare is harmed or threatened thereby. All states now require mental health professionals and school personnel to report incidents of child abuse, or suspected child abuse. Because criteria for reporting vary among the states, there is no substitute for knowing the specific law in your state (Bennett et al., 2006; Welfel, 2013). Increasingly, states are enacting laws that impose liability on professionals who fail to report abuse or neglect of children, the elderly, and other dependent adults. States also provide immunity by law from civil suits that may arise from reporting suspected child abuse and neglect, or of abuse of the elderly LO11

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or other dependent adults, if the reports are made in good faith. Some states require that professionals complete continuing education workshops on assessment of abuse and proper reporting as a condition of license renewal. Mandatory reporting laws regarding suspected child abuse differ from state to state. In Pennsylvania, for example, therapists are required to file a report if the client appears to be the victim of abuse. In New York, therapists must report abuse whether they learn about the situation from the child in therapy, the abuser who is in therapy, or a relative. The laws of some states now require therapists to report disclosures by adult clients about child sexual abuse that occurred years before treatment. The abuse of older people and other vulnerable adults deserves the same kind of attention that is paid to abuse of children. However, Zeranski and Halgin (2011) note that elder abuse has received scant attention in the research literature. Dramatic cases of battery and abandonment can be easily recognized and reported, but many instances of elder abuse occur within the home at the hands of a spouse or an adult child. Knapp and VandeCreek (2012) note that states vary in reporting requirements for elder abuse. Some states permit therapists to break confidentiality and file a report; some states require that therapists do so. In general, the duty to protect elders from harm is stronger than a practitioner’s obligation to maintain client confidentiality. All 50 states have statutes related to elder abuse; in 45 states mental health professionals are mandated to report neglect or abuse of dependent elders (Welfel, 2013). Zeranski and Halgin (2011) state that mental health providers should report when they have reasonable grounds to believe that an elder is suffering from abuse or neglect. In addressing future directions of elder abuse reporting, Zeranski and Halgin contend that “elder abuse will remain a concerning issue for professional psychologists who have legal and ethical obligations to protect people who cannot protect themselves” (p. 299). The major types of elder abuse are physical abuse, sexual abuse, psychological abuse, neglect, abandonment, and financial or material exploitation (see the box titled “Types of Elder Abuse”).

types Of eLder abuse

Physical abuse involves the use of physical force that often results in bodily injury, physical pain, or impairment. sexual abuse consists of nonconsensual sexual contact of any kind with an older adult. Psychological or emotional abuse involves inflicting anguish, pain, or distress through verbal or nonverbal acts. This kind of abuse might include verbal assaults, insults, threats, intimidation, humiliation, and harassment. Neglect is the failure of caregivers to fulfill their responsibilities to provide an elderly person with basic necessities. Neglect can be either intentional or unintentional, and can be either self-inflicted or inflicted by others. Abandonment involves the desertion of an elderly person by a person who has assumed responsibility for being a caregiver. Financial or material exploitation is the illegal or improper use of an elder’s funds, property, or assets.

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The National Center on Elder Abuse (NCEA) is dedicated to educating the public about elder abuse, neglect, and exploitation and its tragic consequences. NCEA is an internationally recognized resource for policy leaders, practitioners, prevention specialists, researchers, advocates, families, and concerned citizens. The National Center on Elder Abuse (NCEA, 2003) states that about 90% of older adults live either alone or with loved ones or caretakers. Abusers of older people can be anyone they depend on or come into contact with. From both an ethical and legal perspective, mental health practitioners are expected to inform clients about the limits of confidentiality pertaining to the duty to report cases of abuse. Although therapists are likely to accept their professional responsibility to protect innocent children, older adults, and dependent persons from physical and emotional mistreatment, they may have difficulty determining how far to go in making a report. It is often difficult to reconcile ethical responsibilities with legal obligations. Therapists may think they have been placed in the predicament of behaving either unethically (by reporting and thus damaging the therapy relationship) or illegally (by ignoring the mandate to report all cases of suspected child or elder abuse). Clinicians must develop a clear position regarding the assessment and reporting of child, elder, and dependent adult abuse. Sometimes reporting is mandatory, sometimes it is discretionary. Some states require permission from the elderly client; other states do not. Review the laws regarding reporting abuse in the state in which you practice. Many therapists wonder whether they have sufficient information or suspicion to report abuse. Mental health professionals who fail to file a mandated report because of the concern that nothing will be done about it, or who fear that a report could make matters worse, or because they are not certain that their suspicions are valid are likely to be in violation of the law and the ethics codes of most professional organizations (Barnett & Johnson, 2010). Fortunately, professional associations in many states provide legal assistance to help therapists make a determination about when and whether to report abuse. Child Protective Services is also useful in helping to determine when to report a situation. Consult with a colleague when in doubt about reporting, but if you have a reasonable suspicion that abuse occurred, the best course to follow is to report the matter, for doing so best protects you as a mandated reporter as well as the client. To what degree are you prepared to carry out your duty to protect children, the elderly, and other dependent adults from abuse or neglect? Evaluate your preparedness by answering the following questions: • How well prepared do you think you are in determining when to report suspected abuse of a child, an older person, or a dependent adult? • How would you account for cultural differences in assessing abuse? • Can you think of ways in which you could file a report on an adult abuser and continue working with the client therapeutically? • What struggles, if any, have you encountered with respect to following the laws regarding reporting child, dependent adult, or abuse of older adults? • If you follow the law in all cases, are you also following an ethical course? What potential conflicts are there between doing what is legal and what is ethical?

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If an adult admits having abused a child, what are your thoughts about a therapist who argues that keeping the client in therapy is the best way to help him or her work through this problem, even if it means failing to report the abuse to authorities? • Do you think therapists should have some flexibility in deciding when it would be best to make a report? Why or why not? • What personal experiences, if any, have you had in your own life that might be triggered by working with child abuse and reporting issues? To help you clarify your position with respect to situations involving child, elder, or dependent adult abuse, consider the following three case examples. In the first case, ask yourself how far you should go in reporting suspected abuse. Does the fact that you have reported a matter to the officials end your ethical and legal responsibilities? In the second case, look for ways to differentiate between what is ethical and what is legal practice. Ask yourself what you would be inclined to do if you saw a conflict between ethics and the law. In the third case, ask yourself whether it is better to error on the side of caution rather than assuming there is no reality base to the allegations. What steps could you take to separate fact from fantasy?

The case of Martina. Martina, a high school counselor, has reason to believe that one of her students is being physically abused. As part of the abuse, critical medication is being withheld from the student. Martina reports the incident to Child Protective Services and gives all the information she has to the caseworker. She follows up the phone conversation with the caseworker with a written report. A week later, the student tells her that nothing has been done. • Has Martina adequately fulfilled her responsibility by making the report? Does she have a responsibility to report the agency for not having taken action? • If the agency does not take appropriate action, does Martina have a responsibility to take other measures? • Would it be ethical for Martina to take matters into her own hands and to call for a family session or make a house call, especially if the student requests it? • Does Martina have an obligation to inform the administration? Does the school have a responsibility to see that action is taken? Commentary. Suspected physical abuse and denying the child critical medication are immediate reportable matters. Although the therapist complied with her legal duty to protect the child by reporting the matter to Child Protective Services, she has an ethical obligation to follow up on the report until the matter has been officially investigated and actions have been taken. Martina might want to begin with another phone call to the original caseworker. Should this course of action prove unsatisfactory, she might contact the caseworker’s supervisor to emphasize the urgent medical issues at hand. Martina should document these efforts as well as any consultations she makes while handling the case.

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A case of protecting an older client. Rose, an older adult, takes great pride in her independence, her ability to take care of herself, and in not being a burden to her family. Her therapist, Arman, is impressed with her independent spirit. Rose eventually divulges to Arman several episodes of forgetting to turn off the gas flame in the kitchen. She laughs it off by saying, “I guess I’m not perfect.” Every so often, Rose discloses similar episodes of forgetfulness that have potential lethal consequences. Arman becomes increasingly concerned and suggests that she notify her family of her problem. Rose lets Arman know that this is not an option because her family has wanted her to move to a nursing home. Rose is adamant in her refusal to go along with their plan. She tells Arman, “If you make me leave my home, there is no point in living.” • If you were Rose’s counselor, what course of action would you take? • What ethical, legal, and medical issues can you identify in this case? • Is there a duty to protect in this situation? Commentary. The therapist cannot afford to become sidetracked by Rose’s insistence that there is no reason to worry or by ignoring Rose’s hint of suicide. It is more important for the therapist to take action to help the client than it is to have her like the therapist. As Arman suggests, a meeting with the family can be of great benefit to all concerned. In our view, Arman does have a duty to protect Rose from accidentally harming herself, and possibly others, as a result of her cognitive impairment. By working closely with Rose, her family, and appropriate authorities, he may be able to help Rose transition to an arrangement that is both safe and acceptable to her. The counselor might also help Rose see some of the potential positive elements in leaving her home, such as fewer things to worry about and being given useful assistance.

A case of protecting a dependent adult. You are working with individuals with mental disabilities, many of whom are institutionalized. One of your clients, Carlos, who has a severe mental disability and lives in a residential home, leads you to believe that he is being sexually abused by at least one member of the staff. You are not really sure about this because it is difficult to separate fact from fantasy when talking with him about other things. • Are you required to make a report to Adult Protective Services so that they can determine the validity of the allegation? • Could you be legally liable for not making a report to protective services? Commentary. In a case such as this it is better to error on the side of caution rather than assuming there is no reality base to the allegations. When there is a reasonable suspicion of any abuse or neglect, a report must be made to the appropriate agency within the time frame specified in local laws (Barnett & Johnson, 2010). Valuable information can be gleaned from a meeting with the multidisciplinary treatment team to make a more accurate assessment and to determine the course of action to take with Carlos.

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COnfidentiaLity and hiv/aids-reLated issues AIDS affects a large population with diverse demographics and continues to gain prominence as a public health and social issue. Most mental health practitioners will inevitably come in contact with people who have AIDS, with people who have tested positive as carriers of the virus, or with people who are close to these people. People who receive an HIV-positive test are usually in need of immediate shortterm help. They need to establish a support system to help them through the troubled times they will endure. Those who are HIV-positive often live with the anxiety of not knowing when or whether they may be diagnosed with AIDS. Many also struggle with the stigma attached to AIDS. They live in fear not only of developing a life-threatening disease but also of being discovered and rejected by society and by friends and loved ones. In addition to feeling different and stigmatized, anger, which is likely to be directed toward others, especially those who have infected them, can be extreme. These clients have often been discriminated against, so it is important that professionals respect their situation, obtain informed consent, and educate them about their rights and responsibilities. Therapists need to inform themselves about the limits of confidentiality, matters of reporting, and their duty to protect third parties, and they need to communicate their professional responsibilities to their clients from the outset. If therapists decide that they cannot provide competent services to HIV-infected people, it is ethically appropriate that they refer these clients to professionals who can provide assistance. We recommend that you review the earlier discussion in this chapter regarding the therapist’s duty to protect and think about how that duty applies to people who have AIDS or are HIV-positive. As a counselor you may indeed work with clients who are HIV-positive. You might accept a client and establish a therapeutic relationship only to find out months later that this person had recently tested positive. If this were the case, how would you answer the following questions: • Can you think of any reason that it would be ethical to terminate the professional relationship and make a referral? • Do you have an ethical responsibility to warn or otherwise protect third parties in cases of those who are HIV-positive and who are putting others at risk by engaging in unprotected sex or needle sharing? • If you do your best to convince your client to disclose his or her HIV status to a partner, and if your client refuses to share this information, what course of action might you take? • What values or life experiences have you had that may influence the way you work with clients who are HIV-positive? Consider your ethical responsibilities to respond to this population before you encounter possible difficult situations. The case described here is designed to help you clarify your position on the ethical dimensions of counseling clients who have AIDS or are HIV-positive. For a wealth of clinical information on many of the topics explored in this section, we recommend Ethics in HIV-Related Psychotherapy: Clinical Decision Making in Complex Cases (Anderson & Barret, 2001). LO12

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The case of Levi and Makena. Levi and Makena are seeing Sarina for couples counseling. After a number of sessions Makena requests an individual session, in which she discloses that she has tested HIV-positive. Sarina finds herself in a real dilemma: She has concerns for the welfare of the couple, but she is also concerned about Makena’s painful predicament. • How would your life experiences help or hinder the way you might work with clients who are HIV-positive? • Does Sarina have a duty to warn and protect Levi? Why or why not? • What alternatives does she have to warning that would serve to protect Levi? • Would such a duty supersede any implied confidentiality of the private session? • Would it be more therapeutic for Sarina to persuade Makena to disclose her condition to Levi rather than taking the responsibility for this disclosure herself? • If Makena refused to inform her husband, should Sarina discontinue therapy with the couple? If she were to discontinue working with them, how might she ethically explain her decision to the couple? • If Sarina felt obligated to continue therapy with the couple, how would she handle the secret, and what ethical issues arise from keeping such a secret? • Are there factors in this situation that would compel Sarina to treat Makena’s secret differently from other major secrets in couples therapy? Commentary. The law is not clear pertaining to the duty to protect in cases pertaining to HIV status. It is extremely important to know the specific law in your jurisdiction and to seek consultation from a colleague experienced with reporting requirements. In some states therapists could lose their license to practice if they breached confidentiality by warning in cases involving HIV status. A number of our colleagues who have faced this kind of dilemma report that they are generally successful in convincing the person who is HIV-positive to disclose his or her health status. This is especially true if the therapist is willing to continue to provide support to both of the partners once the disclosure has been made. It is hard to imagine that couples counseling could be successful if this secret is not addressed. It is crucial for clinicians to maintain a focus on the individual who is infected and to help that person navigate the multitude of issues that will arise. Because of our own fears and biases around HIV and AIDS, as counselors we can too quickly become concerned with protecting “others” and miss helping the person who is sitting in front of us.

ethical and legal Considerations in Aids-related Cases Much has been written about the conditions under which confidentiality might be breached in AIDS-related therapy situations. Courts have not applied the duty to protect to mental health professionals in cases involving HIV infection. Thus, therapists’ legal responsibilities for protecting sexual partners of HIV-positive clients remain unclear. From a legal perspective, breaching confidentiality because of a client’s HIV status is not one of the exceptions to confidentiality. Until a landmark court case determines a precedent, mental health professionals will continue to struggle with doing what they think is morally and ethically right without any guarantee of legal protection. Legal consultation could be critical in providing a safeguard against legal action.

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duty tO prOteCt versus COnfidentiaLity. Earlier in this chapter we discussed the principles involved in situations in which therapists may have a duty to protect innocent victims. The duty to protect may arise when a therapist is convinced that a client who is HIV-positive intends to continue to have unprotected sex, or to share needles, with unsuspecting but reasonably identifiable third parties. Determining whether a duty to protect applies in the case of a client who is HIV-positive is one of the more controversial and emotion-laden issues practitioners might encounter. For practitioners who work with persons who are HIV-positive, the choice is often between protecting the client–therapist relationship and breaching confidentiality to protect persons at risk of infection. This situation can put practitioners in a moral, ethical, legal, and professional bind. State laws differ regarding HIV and the limits of confidentiality, and the law is often different for medical professionals than for licensed psychotherapists. All states now have statutes governing reporting of HIV and AIDS cases to public health authorities and corresponding confidentiality duties, but many of the laws that either permit or require reporting are limited to reporting by physicians (Wheeler & Bertram, 2012). Some state laws forbid any disclosure of HIV status to third parties, and others allow some disclosure to at-risk third parties by physicians and psychiatrists, but not by other mental health professionals. Some states prohibit psychotherapists from warning identifiable victims of persons who are HIV-positive (VandeCreek & Knapp, 2001). Under some state laws, therapists who disclose a person’s HIV-status to an unauthorized third party are subject to criminal charges and to malpractice action as well. Other states have yet to address this issue by statute. Thus, therapists are advised to know what statutes, if any, define the actions they should take regarding reporting of HIV or AIDS cases; they should then follow the statutory mandate. If you are uncertain about how to proceed in reporting HIV or AIDS cases, your state public health department can provide information regarding your obligations. You can also seek advice from an attorney, your professional organizations, and colleagues who are well-versed in ethical decision making (Wheeler & Bertram, 2012). Careful consideration should be given to breaching confidentiality due to the danger to others posed by HIV-positive clients. The following recommendations for therapists can help in making this decision: • All limits to confidentiality should be discussed with the client at the onset of treatment. When this is done early in the therapeutic relationship, it is less likely that therapists will encounter dilemmas over breaching confidentiality. The implications of disclosing confidentiality, as well as other alternatives, can be explored with HIV-positive clients within the counseling context at this time. • Therapists need to keep current with regard to relevant medical information related to the transmission of HIV, know which sexual practices are safer and which are not, and encourage their clients to practice safer sex. • Therapists should speak directly and openly with their clients about their concerns regarding the danger of certain behaviors and the risk to third parties. They can use the therapeutic process to educate their clients about the effects their behavior can have on others, teach safer sex practices, obtain commitments from the client to notify partners, and offer help in communicating information to partners.

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If the client continues to resist using safer sex practices or refuses to inform partners, then the therapist needs to determine what course of action to follow. Practitioners should consult with the public health agency, knowledgeable peers, or attorneys to determine whether their intended course of action is ethically and legally sound. • In disclosing HIV information, therapists need to follow the statutory guidelines and safeguard the client’s privacy as much as possible. Bennett and colleagues (2006) recommend thinking about these situations from a clinical perspective. Attempt to understand the reasons a client is not willing to disclose his or her HIV status. Is it because of fear of domestic abuse? fear of being abandoned? social rejection? Or is the nondisclosure due to some other relationship issue? If you explore the clinical aspects of your client’s situation, it may not be necessary to take steps to warn or protect others. VandeCreek and Knapp (2001) believe the duty to protect obligation has received disproportionate attention and that good clinical skills will obviate the need to determine a course of action regarding warning third parties. They assert that warning an identifiable victim should be considered as a last resort. Many courses of action are open to practitioners besides warning a third party and breaking confidentiality. If psychotherapy is given a chance to work, there is a good chance that the client will voluntarily disclose this information to his or her partner. In summary, dealing responsibly with the dilemmas posed in this section demands an awareness of the ethical, legal, and clinical issues involved in working with clients with HIV/AIDS. There are no simple solutions to the complex issues practitioners face, and this topic is surely one of the more challenging ones. For a comprehensive and in-depth treatment of duty to protect issues, we highly recommend The Duty to Protect: Ethical, Legal, and Professional Considerations for Mental Health Professionals (Werth, Welfel, & Benjamin, 2009).

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Last Updated on February 11, 2019