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Clinical Supervision: Models, Role, Legal & Ethical, & Transference
Clinical Supervision: Models, Role, Legal & Ethical, & Transference

Section 29
Legal: The Duty to Warn, the Tarasoff Decision, HIV/Aids

Question 25 | Answer Booklet | Table of Contents | Supervision
Psychologist CEs, Counselor CEUs, Social Worker CEUs, MFT CEUs

Exceptions to Confidentiality
Since undergraduate and graduate schools offering degrees in mental health vary in their emphasis on the Tarasoff "Duty to Warn" decision; I make a review of this information mandatory training for my supervisees.

Do you feel, like I, that it is important that you emphasize the following ambiguity with your supervisee? In situations that involve criminal activity or the well-being of the client or others, a conflict of obligations occurs. Does the action override your supervisee’s client's right to confidentiality for the purpose of guarding well-being? Ethics entails two types of respect; a respect for the law and a respect for the client.

Tarasoff "Duty to Warn"
In 1974, the California Supreme Court established a principle that requires physicians and psychotherapists to warn intended victims of dangerous clients. This is known as the Tarasoff decision. It brought to widespread attention the legal principle known as the "duty to warn". Key provisions of the duty to warn were elaborated in a 1976 court decision containing the following statement:

When a therapist determines, or pursuant to the standards of his profession should determine, 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. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus, it may call for him to warn the intended victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.

I think it is important that the supervisee is aware that the Tarasoff decision is not a specific law. It is a legal principle based on an interpretation of laws and precedents. Therefore, the duty to warn is an evolving principle.

Note that the Tarasoff Decision ruled that the therapist should warn the intended victim or the police. Subsequent decisions, however, have required notification of both the intended victim and the police. Also, note that the Tarasoff Decision involved a threat to commit murder. It is not clear how much violence, short of murder, requires a duty to warn.

Six Principles in Carrying out Duty to Warn:
1. Carefully assess the severity of the threat and the likelihood of its being carried out.
2. Consider using any available means for reducing the violent threat, and whether or not a duty to warn is involved.
3. If a client explicitly threatens to murder an identifiable victim, there is a clear duty to warn the victim and the police. If the client implies a threat of violence other than murder, the therapist should weigh the violence versus (a) the risk of violating confidentiality and (b) the risk of unduly frightening the warned individual.
4. Release no more information than is needed for the intended victim's protection.
5. Document your risk assessment and actions taken. Document judgment about the balance between risks and benefits involved.
6. Obtain the client's cooperation or consent in warning the third party if at all possible.

Outline of Discussion for Reviewing the Preceding Content
As a supervisor I feel I am actually teaching a thought process. Therefore I present the supervisee with the following multiple choice question, followed by a discussion of the rationale behind the correct, as well as the wrong, answer.

You may reveal confidential information in order to prevent a significant threatened danger, but only if...
a. the client consents
b. care is taken to determine the information's validity
c. the client was instructed earlier about the limits to confidentiality
d. the client has a serious and persistent mental illness
To select and enter your answer go to Answer Booklet.

The correct answer, of course, is B, care is taken to determine the information's validity. The duty to warn, as I just mentioned, known as the Tarasoff Decision, overrides client's right to give consent.

Answer C, the client was instructed earlier about the limits of confidentiality, is false because the duty to warn applies even if the client was not previously instructed about it. C describes what would be a good practice, but it's not required.
Answer B, however, is required. It would be destructive to violate a client's confidentiality and arouse the anxiety of a presumably threatened third party on the basis of invalid information.
Answer D, the client has a serious and persistent mental illness, is incorrect, because the duty to warn applies to persons with any diagnosis or even no diagnosis at all.

What are your thoughts about providing supervisees with structured exercises to teach thought preocess-type materials.

 

Regarding HIV/Aids and Duty to warn, the following is a reprint of an excerpt from The New Social Worker journal.

Duty to Warn and Protect in HIV/AIDS Cases
Social workers often work with clients who are HIV-positive or have AIDS. Confidentiality is very important to such clients, because of the stigma attached. Huprich, Fuller, and Schneider (2003) consider the question as to whether the therapist has the obligation to warn a third party of risk of transmission of HIV if his or her client is actually putting another party at risk. Stanard and Hazler (1995) report a case in which duty to protect seems important.
Brian is a 24-year-old married bisexual man entering counseling to deal with grief and depression associated with a recent diagnosis of HIV infection. During the course of counseling, Brian discloses that he continues to be sexually active with his wife and also occasionally with anonymous male partners. Brian has not disclosed his diagnosis to anyone and maintains that it is not necessary to do so because he practices "safe sex." (p. 397)

Melchert and Patterson (1999) discuss how being HIV-positive may pose a different situation from that of the Tarasoff case. Mental health professionals do not have the legal right to disclose that a person is HIV-positive to another person. This is at the discretion of physicians in many states. However, social workers and mental health professionals must struggle with this legal situation if a client insists on potentially harming another person through risk of transmission of HIV.

Granich, Steven, LCSW, MPA, DSW. Duty to Warn, Duty to Protect, The New Social Worker, Winter 2012.


Recognizing Child Maltreatment, Maladies, & Mental Illness

Ethical Issues of Child Abuse and Confidentiality
Abuse of children, no doubt, is one of the greatest social maladies of our time, and current statistics, although staggering, may reflect only the surface of the problem. I feel crucial information to inform your supervisee of the following. Human service professionals -- including psychologists, social workers, marriage and family therapists, mental health counselors, teachers, and psychologists -- are required by law to report known or suspected child maltreatment. As I have a supervisee read the following case, I ask them, what he or she would do if confronted with this situation.

You are about to finish a session with Nancy and her daughter Olivia. You feel Nancy has pent up hostility towards her daughter. You also notice that as Olivia reaches for her school books to leave, her sleeve pulls up to reveal a cut and large bruise on her arm. It seems to me that there are 4 possible ways to deal with this situation.
1. Contact Child Protective Services about the possibility of abuse.
2. Ask the mother, Nancy, how the injury happened.
3. Wait until the next session to discuss the situation and observe any changes.
4. Ask the child, Olivia, in private how the cut and bruise happened.

Here is an example of how I would present the thought process to my supervisee. The best option would be to ask the child in private how the cut and bruise happened. Do you agree? If confronted, Nancy, as a mother, may feel pressured to lie about the injury if, in fact, abuse is involved. I feel the best situation is to ask the Olivia when Nancy is not present. If that is not a choice, my thinking is that it would be better to either extend the session and discuss it immediately, or consider making it an agenda item at the next meeting. What is your opinion on how to handle this situation? Also, what is your opinion about presenting this to a supervisee?

QUESTION 29
You may reveal confidential information in order to prevent a significant threatened danger, but only if…
To select and enter your answer go to Answer Booklet.

 
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