Confidentiality and Informed Consent

Confidentiality in all fields of social work is paramount. Confidentiality gives clients comfort knowing that they can speak freely and engage more fully in the counseling and treatment processes if they believe that their privacy is being safeguarded. (Appelbaum, Kapen, Walters, Lidz, & Roth, 1984; Miller & Thelen, 1986). This ultimately makes counseling sessions more productive. Practitioners who breach the confidentiality with their client can lose any trust they have gained up to that point. This breach of trust can lead to early termination of treatment, poor treatment outcomes, and malpractice suits. (Kagle & Kopels, 1994).

There are circumstances where therapists may have to breach confidentiality. In recent years they have seen their ability to protect confidentiality diminish by increased access to information in records, mandated child abuse reporting, and increased court involvement. Therapists sometimes offer clinical services to potentially violent clients which, in turn, presents a challenge to confidentiality. They may have a duty to protect third parties and may breach confidentiality in discharging that duty.

In 1976, there was a case in which the Supreme Court of California held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. This case was Tarasoff v. Regents of the University of California and involved a student by the name of Prosenjit Poddar from Bengal, India. (Kagle & Kopels, 1994). He entered the University of California, Berkeley as a graduate student in September 1967. In the fall of 1968 he met Tatiana Tarasoff and began seeing each other weekly. On New Year’s Eve Tarasoff kissed Poddar which he interpreted as a recognition of the existence of a serious relationship. This view was not shared by Tarasoff and told Poddar that she had no interest in entering into an intimate relationship with him. She also stated that she was involved with other men. Poddar began to have feelings of resentment and began to stalk her and apparently developed a wish for revenge. Poddar began to experience a severe emotional crisis and became depressed and neglected his studies and his health.

During the summer of 1969, Tarasoff went to South America and Poddar sought psychological assistance. Dr. Lawrence Moore, a psychologist at UC Berkeley’s Cowell Memorial Hospital, began treating Poddar in 1969. Poddar confided his intent to kill Tarasoff. Dr. Moore requested that campus police detain Poddar, writing that, in his opinion, Poddar was suffering from paranoid schizophrenia, acute and severe. (“Wikipedia: Tarasoff V. Regents of the University of California”, 2009). The psychologist recommended that Poddar be civilly committed as a dangerous person. Poddar was detained but shortly thereafter released, as he appeared rational. Dr. Moore’s supervisor, Dr. Harvey Powelson, then ordered that Poddar not be subjected to further detention. (“Wikipedia: Tarasoff V. Regents of the University of California”, 2009). In October, after Tarasoff returned, Poddar stopped seeing his psychologist. Neither Tarasoff nor her parents received any warning of the threat.

On October 27, 1969, Poddar carried out the plan he had confided to his psychologist, stabbing and killing Tarasoff. Tarasoff’s parents then sued Moore and various other employees of the University. Poddar was subsequently convicted of second-degree murder, but the conviction was later appealed and overturned on the grounds that the jury was inadequately instructed. A second trial was not held, and Poddar was released on the condition that he would return to India. (Kagle & Kopels, 1994). The California Supreme Court found that a mental health professional has a duty not only to a patient, but also to individuals who are specifically being threatened by a patient. This decision has since been adopted by most states in the U.S. and is widely influential in jurisdictions outside the U.S. as well. Justice Mathew O. Tobriner wrote the famous holding in the majority opinion. “The public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.” (Beauchamp & Childress, 2001, p. 417).

Providing clients with the opportunity to make an informed decision about participating in psychotherapy communicates respect for personhood and reflects the collaborative nature of psychotherapy. Informed consent to psychotherapy is not only ethical but also is integral to the formation of a balanced, therapeutic relationship. According to Fisher and Oransky, there are three basic guidelines for consent. They are that a client’s decision to enter psychotherapy is informed, voluntary, and rational. The informed component typically includes informing clients of the nature and duration of the therapy, explaining fees and payment policies, detailing the involvement of third parties, and discussing the limits of confidentiality.

The voluntary component of consent requires psychologists to take steps to ensure the clients’ initial and continuing participation in psychotherapy is not subject to coercion by either the psychologist or others in the clients’ social network. The rationale component of consent reflects clients’ ability to appreciate the personal relevance of the information provided by the psychologist and make a rational judgment about agreeing or refusing to accept the psychologist’s services. (Fisher, Ph.D. & Oransky, 2002).

References

Appelbaum, P. S., Kapen, G., Walters, B., Lidz, C., & Roth, L. H. (1984). Confidentiality: An empirical test of the utilitarian perspective. Bulletin of the American Academy of Psychiatry and Law, 12, 109-115. Beauchamp, T. L., & Childress, J. F. (2001). Principles of Biomedical Ethics (5th ed.). New York, NY: Oxford University Press, Inc. Fisher, Ph.D., C. B., & Oransky, M. (2002). Informed Consent to Psychotherapy and the American Psychological Association’s Ethics Code. National Register of Health Service Psychologists, Kagle, J. D., & Kopels, S. (1994). CONFIDENTIALITY AFTER TARASOFF. Health & Social Work, 19(3), 217-222. Miller, D. J., & Thelen, M. H. (1986). Knowledge and beliefs about confidentiality in psychotherapy. Professional Psychology: Research and Practice, 17, 15-19. Wikipedia: Tarasoff v. Regents of the University of California. (2009). Retrieved from http://en.wikipedia.org/wiki/Tarasoff_v._Regents_of_the_University_of_California