Hint: To answer these questions, remember what exceptions to confidentiality rules are allowed in HIPAA and association standards in cases of foreseeable harm to self or others. Analysis Resulting court opinions form the basis for a general acceptance of the notion that treating professionals have a duty to protect if they know there are intended victims. This is important and relates to the general principles of beneficence, meaning “striving to benefit,” and nonmalfeasance, meaning to do no harm. In Tarasoff v. Regents of the University of California , it was ruled that if the patient poses a significant risk of violence to another party, the therapist “bears a duty to exercise reasonable care to protect the foreseeable victim of the danger.” States differ in their requirements for identifying foreseeable danger or intended victims, as well as the scope or the degree of possible danger. These are important factors to be considered and acted on to protect both individuals and society. Ethical Decisions: Key Points from the Tarasoff Case The following precedents were set, following this case, that altered legal statutes and professional standards for ethical practice. ● Therapists have specialized knowledge due to the therapeutic relationship of the therapist and client that should inform the duty to protect in this case. ● The Tarasoff case, and cases that followed, support the therapist’s duty to warn/protect intended victim(s), not the community at large. ● Counselors must be competent to identify and evaluate clients’ potential for violent behavior and assess their potential to commit dangerous acts. ● If a patient poses a significant risk of violence to another party, the therapist “bears a duty to exercise reasonable care to protect the foreseeable victim of danger.” ● One standard by which the breach of confidentiality and the duty to warn will be judged is the standard of what a reasonable professional in the community under the circumstances would do. This is supported by laws and professional standards. ● Counselors must be competent to work with clients with those diagnoses that may include violent behavior or refer those clients to other professionals. Counselors and therapists work only within their area of expertise. ● Client records are critical to document that the therapist understood the nature of the situation in relation to the client’s diagnosis. ● Counselors must take reasonable steps based on their knowledge of the facts. ● Counselors should consult with colleagues if they are unsure of how to proceed according to their code of ethics and the law of their state. ● A therapist is liable for a negative outcome if their actions fall below the expected level of care. Only supporting professional standards from the ethics codes are listed subsequently, so the identifying numbers will not be consecutive: a. ACA Standards i. B.2.a. Serious and Foreseeable Harm and Legal Requirements. The general requirement that counselors keep information confidential does not apply when disclosure is required to protect clients or identified others from serious and foreseeable harm or when legal requirements demand that confidential information must be revealed. ii. iC.2.a. Boundaries of Competence Counselors practice only within the boundaries of their competence, based on their education, training, supervised
experience, state and national professional credentials, and appropriate professional experience. iii. C.2.e. Consultations on Ethical Obligations Counselors take reasonable steps to consult with other counselors, the ACA Ethics and Professional Standards Department, or related professionals when they have questions regarding their ethical obligations or professional practice. iv. I.1.a. Knowledge Counselors know and understand the ACA Code of Ethics and other applicable ethics codes from professional organizations or certification and licensure bodies of which they are members. Lack of knowledge or misunderstanding of an ethical responsibility is not a defense against a charge of unethical conduct. b. NBCC Standards i. 1. Counselors shall perform only those professional services for which they are qualified by training, education, and supervised experience. ii. 19. Counselors shall not share client information that is obtained through the counseling process without specific written consent by the client or legal guardian except when necessary to prevent serious and foreseeable harm to the client or others, or when otherwise mandated by Federal or State law or regulation. c. AAMFT Standard i. 1. Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law. Verbal authorization will not be sufficient except in emergency situations, unless prohibited by law. ii. 3.2 Knowledge of Regulatory Standards. ensure adequate knowledge of and adherence to applicable laws, ethics, and professional standards. iii. 3.10 Scope of Competence. Marriage and family therapists do not diagnose, treat, or advise on problems outside the recognized boundaries of their competencies. Components of the Tarasoff case judgement were expanded in subsequent cases involving confidentiality, disclosure, informed consent, and duty to warn and protect. It is important to review the state and federal laws and administrative codes for each state of practice for direct or distance counseling. States differ in requirements concerning identifying victims and determining the scope of the danger. The following examples show some of the resulting changes from the case. ● Some cases have recognized the duty to warn all foreseeable victims, not just those clearly identified. ● Legislative and regulatory bodies have attempted to clarify and define this duty across numerous states. ● All 50 states have mandatory reporting requirements for child abuse. ● In cases of communicable diseases, such as HIV, the counselor may attempt to diffuse the risks to the client before making an exception to the confidentiality rule if the level of risk or level foreseeable harm allows it. Examples would be to: ○ Have the client present when the partner is notified ○ Include this in part of the therapy ○ Have the partner or a client voluntarily divulge the disclosure ○ Have the parties participate in other partner notification programs. Marriage and family therapists pursue appropriate consultation and training to
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Book Code: PCUS1525
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