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Ethics - Limits of Confidentiality
Boylan et al. (1995) believed that changes in the legal mandates led to changes in the ethical codes under which professionals operate. They cited three legal constraints that have been placed on therapists that have directly impacted the limits of confidentiality in the therapeutic relationship. The first is the famous Tarasoff v. Regents of the University of California (1976) case, in which the court held that therapists might need to breach confidentiality to protect third parties who may be in danger from a client being seen in therapy. The second legal constraint is the enactment of mandatory child (and elder) abuse reporting laws, which require therapists to breach confidentiality. The third legal consideration is the lawsuits brought against physicians and institutions for failing to provide adequate care to suicidal clients or patients. Beck (1990) noted that the requirement for psychotherapists to report information to third-party payers as a condition of payment is another change that has affected the limits of confidentiality. The changes in the legal climate and in ethical thinking have led therapists to view confidentiality in the therapeutic relationship as limited and no longer an absolute.
Although no longer all encompassing, confidentiality remains one of the cornerstones of the therapeutic relationship (Remley & Herlihy, 2001). Clients need to be educated about confidentiality, privileged communication, and privacy to ensure trust in the therapeutic relationship (Corey, Corey, & Callanan, 1998). One of the best ways to accomplish this is through the process of informed consent. Bednar, Bednar, Lambert, and Waite (1991) stated that it is essential for clients to understand the treatment that will be provided to them and to give their consent voluntarily and that it is the responsibility of the therapist to assess the level of the client's understanding and to make sure the choice to enter counseling was made freely. The limits of confidentiality are an important element of any informed consent.
Clients need to be aware that confidentiality and privilege belong to them, not the therapist. As such, clients have the right to waive their privacy. Clients may ask a therapist to release information regarding the therapeutic relationship to third parties (Remley & Herlihy, 2001). According to Knapp and VandeCreek (1987), clients may also implicitly waive privilege and confidentiality if they file a lawsuit or malpractice suit against a professional.
The most well-known limit to confidentiality—but one that still needs to be explained to clients—is that the therapist may decide to break confidentiality in cases where the client makes threats to harm others. In 1974, the California Supreme Court ruled in the Tarasoff case that a psychotherapist has a duty to warn third parties who have been threatened by a client being seen in therapy (Felthous, 1989). In 1976, the court issued a different holding that resulted in a broader, more robust announcement. The court held that the therapist's duty was to protect the intended victim, rather than to warn (Bednar et al., 1991). Although the Tarasoff doctrine only applies in the state of California, many states have adopted similar laws, and therapists must have knowledge of their current state laws (Knapp & VandeCreek, 1993).
Similarly, although there may be no legal duty to do so in a particular state, therapists have an ethical duty to protect clients who may be a harm to themselves due to mental illness. In terms of preventing harm, Furrow (1980) discussed the duty to prevent suicide in a hospital, the duty to control dangerous conduct, and the duty to protect. A therapist must exercise reasonable care to prevent foreseeable harm or danger that may result from a client's mental or physical incapacity (Furrow, 1980). The courts have upheld that an additional duty to protect a client is established when the client is a danger to themself (Bongar, 1991). The duty to protect has been upheld by the courts many times for clients who were hospitalized (Bongar, Maris, Berman, & Litman, 1992). It has been more difficult to hold a therapist responsible for the actions of an outpatient client (Furrow, 1980).
In addition, there are instances when the therapist may need to share client information with others. In these instances, Remley and Herlihy (2001) suggested that the “umbrella” of confidentiality be extended to cover other people. Potentially, clerical staff and other employees may handle confidential client information. In these cases, the therapist is responsible for any breaches of confidentiality that may take place. In some cases, therapists may need to consult with fellow colleagues or experts in a particular area. Although this potentially can be accomplished without revealing client identity, there may be times when providing such information is unavoidable. In these situations, it would be wise for the therapist to inform the client (Remley & Herlihy, 2001). A final instance where confidential client information is shared is when the therapist is working under supervision. One difference is that in this situation the client's identity cannot be concealed (Corey et al., 1998). Therapists in training have an ethical obligation to disclose to clients that they will be working under supervision and that confidentiality is limited (Remley & Herlihy, 2001).
Reflection Exercise #2
Ethics CEU QUESTION 9
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