I’m wondering how you would proceed when it is the case of a married person who is positive from engaging in sex outside the marriage, and the spouse does not know that the person is HIV+?
Jeffrey Barnett Responds
Hi Victoria. Great question. These are such tough issues. The first point to consider is to know your state law on this. As I mentioned in my original posting on this topic some states require reporting and some do not. If you are not sure of your state law you should check with your state psychological association. Then, with that legal requirement in mind, you should craft your informed consent agreement accordingly. If you let clients know of this potential exception to confidentiality during the informed consent process they will then know that if they share this information how you will handle it. To report such behaviors to a third party without having first informed the client of this potential limit to confidentiality would likely be both unethical and illegal.
It is important to keep in mind that duty to warn and protect statutes typically address a threat to do future harm to an identifiable individual or individuals. Thus, past behaviors would not be relevant. Also, when unsure of how to proceed good resources to consult include your state psychological association’s ethics committee, the APA Ethics Office, and if your malpractice insurance is through the APA Insurance Trust, they have an excellent risk management consultation service.
Part of the difficulty here is that the legal and ethical doctrine of duty to warn and protect is based on threats of physical harm that is typically seen as lethal in intent. This is usually quite clear when it comes to threats to shoot, stab, etc. another individual. Threats to murder another individual will be seen as clearly meeting the standard for warning and protecting. When it comes to HIV and AIDS-related situations the lethality of the situation is less clear since transmission rates are not even close to 100%, since there now exist treatments that make being HIV-positive no longer the death sentence it once was, and since most individuals in our society are informed about STDs and the need to practice safe sex. Of course, in your example, the third point here would be less relevant since a partner in a committed relationship or marriage might not see a need for practicing safe sex. A final point is that in many jurisdictions, prior to warning and protecting when they are called for, the clinician is given the option of addressing the treat in treatment. If the issues can be successfully resolved through treatment then the need for warning and protecting are no longer present.
I hope this is helpful to you. I do not represent myself as an attorney or an expert on every jurisdiction’s laws, and I do not know all the details of your case. But, I do hope this provides some issues for consideration and discussion.
Cite This Article
Barnett, J. E. (2010, August). Ask the ethicist: Is there a duty to warn when working with married HIV-positive clients? [Web article]. Retrieved from http://www.societyforpsychotherapy.org/ask-the-ethicist-duty-warn-working-married-hiv-positive-clients
Chenneville, T. (2000). HIV, confidentiality, and duty to protect: A decision-making model. Professional Psychology: Research and Practice, 31(6), 661-670.
Mills, M. (1984). The so-called duty to warn: The psychotherapeutic duty to protect third parties from patients’ violent acts. Behavioral Sciences & The Law, 2(3), 237-257.