Breach of Confidentiality: The Legal Implications When You Are Seeking Therapy

Abnormal Psychology 204 November 2, 1996

Breach of Confidentiality: The legal Implications when You are seeking Therapy I.
The need for confidentiality in therapy A. Establish trust B. A patients bill
of rights Thesis: The duty to warn has created an ethical dilemma for
psychological professionals. II. Therapists face a moral problem B.
Requirement by law to breach confidentiality C. Exceptions for breaching
confidentiality D. Prediction of violence E. Impact on client I. The future
outlook for therapy A. Conflicting views between the legal and psychological
professions

People are afraid to admit to themselves and others that they need to help to
resolve their psychological problems. This is due to the social stigma which
society attaches to people, when they seek assistance from a mental health
professional. Consequently it is very difficult for any person to establish a
trusting relationship with their therapist, because they fear, that the
therapist might reveal their most personal information and emotions to others.
Health professionals therefore created the patients bill of rights to install
confidence between clients and therapists. The patient has a right to every
consideration of privacy concerning his own medical care program. Case
discussion, consultation, examination, and treatment are confidential and should
be conducted discreetly. Those not directly involved in his care must have the
permission of the patient to be present. The patient has the right to expect
that all communications and records pertaining to his care should be treated as
confidential. ( Edge, 63 ) This bill of rights enables clients to disclose all
personal information without fears. To fully confide in the therapist is
essential to the success of the therapy. On the other hand, the therapist is
legally obliged to breach this trust when necessary. The duty to warn has
created an ethical dilemma for psychological professionals. The duty to warn is
based on a court ruling in 1974. Tatiana Tarasoff was killed by Prosenjit Poddar.
Prior to the killing Poddar had told his therapist that he would kill Tatiana
upon her return from Brazil. The psychologist tried to have Poddar committed,
but since the psychiatrist overseeing this case failed to take action, Poddar
was never committed nor was Tarasoff warned about Poddars intentions to kill her.
This failure resulted in Tatianas death. The Supreme Court therefore ruled that
the psychologist had a duty to warn people which could possibly become harmed (
Bourne, 195-196 ). This policy, to warn endangered people, insures that
therapists must breach there confidentiality for specific reasons only. These
few exceptions are:

Harm Principle:

"When the practitioner can foresee a danger to an individual who
is outside the patient/provider relationship, potentially caused
by the patient, the harm principle provides the rationale for
breaching confidentiality to warn the vulnerable individua"
( Edge, 63 ).

"When the client is a potential danger to himself or herself" (
Bourne,487 ).

"If the client is a criminal defendant and uses insanity as a
defense” ( Bourne, 487 )

"If the client is underage and the therapist believes that he or
she is the victim of a crime (such as child abuse)" ( Bourne, 487 ).

The breach for a clients insanity defense would have been helpful in deciding a
famous court case in 1843: the McNaghten\'s case. McNaghten used the insanity
defense, when he was faced with the charge of killing Sir Robert Peele\'s private
secretary. A jury had to decide, if he was conscious of the act or if he was
temporary insane ( McCarty, 299-300 ). The jury clearly didn\'t have the
professional training to make a competent decision. How did they establish if
McNaghten knew right from wrong at the time of the crime? Therefore they were
incompetent when deciding that he, indeed, was temporarily insane. Now these
determinations are made by qualified mental health professionals. Nevertheless
other obstacles are still being encountered. In the beginning the law provides
clear guidelines when to breach confidentiality. The Harm Principle is one of
the guidelines. But how can a therapist absolutely determine, that a client
presents harm to another individual? “To say that someone is dangerous is to
predict future behavior. The rarer an event, the harder it is to predict
accurately. Hence if dangerousness is defined as homicide or suicide, both of
which are rare events, the prediction of dangerousness will inevitably involve
many unjustified commitments as well as justified ones” ( Alloy, 570 ). The
therapist must predict the capacity for violence in the client. There are no
guidelines to establish such a diagnose. “…