CONFIDENTIALITY AND DUTY TO WARN
Anyone familiar with the previous 1995 ACA Code of Ethics will notice the omission of “clear and imminent danger” and the substitution of “serious and foreseeable harm” in the revisions. This change was a direct outcome from the legal case Tarasoff v. Regents of the University of California. Case Study: Duty to Warn Prosenjit Poddar, a student from India, was born into the Harijan, or the “untouchable” caste. He came to UC Berkeley as a graduate student in September 1967 and briefly dated a fellow student named Tatiana Tarasoff. Ms. Tarasoff was not interested in a serious, exclusive, relationship, and that during the summer of 1969, she went to South America. Poddar felt betrayed, became depressed, and sought counseling with a psychologist at UC Berkeley University’s Health Service Department. During counseling, Poddar confided his intent to buy a gun and kill his former girlfriend. His psychologist concluded Poddar posed a significant danger. This conclusion came not only from Poddar’s statements but also from assessment results that indicated a pathological attachment to Tarasoff. The psychologist consulted with professional colleagues and notified police, both orally and in writing, of his belief that Poddar posed a significant danger to Tarasoff. The psychologist believed that Poddar was suffering from acute, severe, paranoid schizophrenia. The psychologist also told the police of Poddar’s plans to shoot and kill Tarasoff. The psychologist requested that the campus police detain Poddar and also requested that the police take Poddar to a facility for hospitalization so that an evaluation under California’s civil commitment statutes could be administered in order to commit him as a dangerous person. Poddar was detained but shortly thereafter released because he appeared rational, and the police believed he was not a significant danger to his girlfriend. Poddar agreed that he would stay away from Ms. Tarasoff, but Poddar then befriended Tatiana’s brother and even moved in with him. Poddar stopped seeing his psychologist, and neither Tatiana nor her parents received any warning of the threat he revealed to the psychologist. Poddar carried out his plan and killed Tatiana Tarasoff by stabbing her with a kitchen knife. Poddar was sentenced to second degree murder for manslaughter and served four years of a five-year sentence. Poddar’s original sentence was overturned because the jury was not adequately informed of his mental illness. He was allowed to avoid a second trial by agreeing to return to India, and reports indicate he is married and living happily in India today. Ethical Questions: Tarasoff Case on Duty to Warn Since the Tarasoff case, many laws and association standards and codes of ethics have changed to mandate the duty to warn. There are still a number of issues to consider related to ethics today: 1. Was the counselor competent to deal with the cultural aspects and the mental health diagnoses? 2. What information concerning cultural contexts existed? 3. Was the counselor competent to deal with dangerous or violent clients? 4. Can the counselor violate this ethical standard of confidentiality if they are no longer seeing the client? 5. What should be done if clients pose a significant danger to others and need therapy but do not return to therapy, placing the client and society at increased risk?
This landmark case from 1969 involved a counselor working with a client who admitted he intended to murder his partner. The study of confidentiality in the mental health field must include a thorough review of Tarasoff v. Regents of the University of California . Analysis of the legal case has been the subject of much historical literature in the field of mental health ethics. A brief summary follows. Tatiana Tarasoff’s parents sued the psychologist, the University of California, and the health center staff involved in the consultation, as well as the police. Both trial and appeals courts initially dismissed the case because, at that time, no legal basis existed under California law concerning the duty to warn. The Tarasoff family appealed their case to the Supreme Court of California. The court ruled the defendants knew of the danger prior to the tragedy and had a duty to warn Ms. Tarasoff, or her family, of Poddar’s potential for significant danger due to his severe mental illness and stated plans to kill their daughter. The family believed that the mental health professionals should have insisted on Poddar’s confinement and should have taken steps to ensure he was hospitalized to protect their daughter. In 1974, the court ruled that the therapists did have a duty to warn Ms. Tarasoff. The defendants and several organizations responded and petitioned the court for a new hearing. This petition was granted, and the second hearing in 1976 resulted in the ruling that released the police from liability. It established, however, that mental health therapists were responsible and placed them under obligation to warn by imposing a duty that they use reasonable care to protect third parties against any dangers posed by a patient. The ruling included the following indicators on the duty to warn to protect the intended victim (Tarasoff v. Regents of University of California, 1976): ● If the therapist concludes, or should have concluded based on the professional standards, that the client was a serious, violent danger to society, they had the duty to warn. ● The therapist had an obligation to use reasonable care, based on what he knew, to protect the intended victim from danger. ● Depending on the specifics of the case, the therapist may have had to make numerous contacts to notify and warn the potential victim(s), notify law enforcement, contact medical or psychiatric facilities, or persist in taking all steps necessary to warn and protect. 6. What if clients avoid therapy because the therapist may disclose their shared information to law enforcement? 7. What if clients are not forthcoming with their true feelings and intentions because they believe the counselor will disclose them to law enforcement or mental health facilities? ● What is the responsibility of the therapist or counselor, who believes the client poses a danger, to follow up after a client is released from a facility? For how long? 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.
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Book Code: PCUS1525
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