Confidentiality and its Exceptions
The Case of Duty to Warn
Maintaining the confidentiality of both the existence of and content shared within psychotherapy is one of the foundations of the psychotherapy relationship. In fact, this has been an essential feature of all health care relationships dating as far back as the Fifth Century B.C.E. as articulated in the Hippocratic Oath:
Whatever I see or hear in the lives of my patients, whether in connection with my professional practice or not, which ought not to be spoken of outside, I will keep secret, as considering all such things to be private. (NIH, 2015, para. 10)
A significant portion of the public at large views confidentiality in health care relationships as very important. In their survey of members of the public, Miller and Thelen (1986) found that 96% of respondents wanted to be informed about confidentiality from the outset of the professional relationship, with 74% reporting the opinion that there should be no exceptions to confidentiality in the psychotherapy relationship. In fact, 69% reported the erroneous belief that everything shared with a psychologist in the context of psychotherapy is completely confidential. These findings illustrate both general expectations and confusion about confidentiality our clients may have when presenting for treatment.
It is widely understood that the promise of confidentiality is essential for clients to experience the comfort and safety needed to disclose their personal and private information freely so they may receive needed assistance (Younggren & Harris, 2008). If no such guarantee existed it is likely that many individuals might not seek out needed mental health treatment services. Clearly, that is not in those individuals’ or society’s best interests.
The vital role confidentiality plays in the psychotherapy process was highlighted in the ruling from Jaffe v. Redmond (1996), which states in part:
Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment. (para. 13)
Yet, at the same time, it is understood that psychotherapists maintain obligations both to their clients and to society at large. In fact, by virtue of being licensed to practice mental health, the sanctioning legislature has created certain broad responsibilities that the professional maintains, which often go beyond the wishes, needs, or desires of one’s clients.
Exceptions to Confidentiality
States have broad responsibilities to their citizens. Legislatures along with ethics and legal scholars have grappled with determining the right balance between promises of confidentiality to clients and the need to protect the jurisdiction’s citizens from harm. All licensing jurisdictions in the United States have laws that place limits on the confidentiality of information relevant to protecting some vulnerable individuals from harm (Werth, Welfel, & Benjamin, 2009). Examples include mandatory reporting requirements for the suspected abuse and neglect of minors and mandatory reporting requirements for the suspected abuse and neglect (and in some jurisdictions, exploitation and self-neglect) of either the elderly or when more broadly defined, vulnerable adults.
These exceptions to confidentiality represent efforts to strike a balance between preserving confidentiality within the psychotherapy relationship and the need to protect vulnerable individuals from harm. The focus on the prevention of harm is an essential element; most mental health professionals are not required to report past criminal activity as it does not represent a threat of future harm to members of the public.
Complexities and Misunderstandings
Unfortunately, the myriad laws, regulations, and legal rulings from the courts have created confusion for psychotherapists about what is confidential, what our responsibilities are, when we may breach confidentiality, when we must breach confidentiality, and what specific actions we must take in these situations. Kampf, McSherry, Thomas, and Abrahams (2008) surveyed psychologists and found that they were often unclear regarding their specific legal and ethical responsibilities and expectations for breeching confidentiality. Challenges to understanding one’s obligations include highly complex and often contradictory-appearing laws and regulations, unclear definitions of “dangerousness”, and the need for practical guidance in clinical practice. In a similar study, Pabian, Welfel, and Beebe (2009) found that 76.4% of the psychologists they surveyed “were misinformed about their state laws, believing that they had a legal duty to warn when they did not, or assuming that warning was their only legal option when other protective actions less harmful to client privacy were allowed” (p. 8). In short, many mental health professionals may fail to understand their ethical and legal obligations regarding exceptions to confidentiality and mandatory reporting requirements.
Dangerousness and the Duty to Warn and Protect
The duty to warn and protect identified third parties from harm by one’s clients is a key challenge to confidentiality in psychotherapy. The landmark legal ruling in Tarasoff v. Regents of the University of California (1974/1976), while technically only legally binding in the State of California, has had far reaching implications throughout the nation, setting the legal standard in many states (Corey, Corey, & Callahan, 2007). Yet, laws vary by state and psychotherapists are advised to become well acquainted with the legal requirements in their jurisdiction.
Werth, Welfel, and Benjamin (2009) provide a comprehensive listing of legal requirements in every jurisdiction. Interestingly, some jurisdictions have a duty to warn statute, some have a duty to report statute, some have a duty to warn and protect statute, others may have duty to warn, protect, or treat statutes, and some may have none of the above.
In Maryland, for instance, licensed health professionals whose client makes a threat to “inflict imminent physical injury upon a specified victim or group of victims” have a duty to warn, protect, or treat (Courts and Judicial Proceedings Article, §509, b). This means that the health professional will first attempt to address this threat through treatment such as through civil commitment or other forms of treatment that prevent the intended harm from occurring (and thus alleviating the need to warn and protect). But, if treatment is not successful or not possible, then the health professional must both protect (notify the police of the nature of the threat and the identities of the individuals involved) and warn (make a reasonable good faith effort to warn the intended victim(s) of the threat).
In contrast, in Texas, the Texas Supreme Court ruled in 1999 that health professionals in that state have no duty to warn and protect (Thapar v. Zezulka, 1999). As Barbee, Combs, Ekleberry, and Villalobos (2007) explain, the Texas Supreme court specifically decided not “to violate various state confidentiality statutes enacted by the Texas Legislature governing mental health professionals” (p. 19). Thus, in Texas, a psychotherapist who acts on a duty to warn and/or protect when a client expresses the intent to harm another individual would be violating Texas law and placing her or himself at great legal risk.
The many challenges that may arise from this regulatory environment in Texas were poignantly illustrated in 2001 in the case of Andrea Yates, a woman who murdered her five children by drowning each of them systematically in a bathtub (Walsh, 2002). Prior to these murders, Yates was treated by multiple health professionals in Texas on an outpatient basis and also received inpatient treatment, where she was diagnosed and treated for postpartum psychosis and depression (Walsh, 2002). Yet, due to their specific state laws, these health professionals were not legally required or allowed to breach confidentiality in a manner that could possibly have prevented this tragedy.
Ongoing Challenges in Implementing the Duty to Warn and Protect
There presently exists a great deal of variability in how dangerousness is defined and what specific actions should be taken to fulfill the health professionals’ obligations in various states’ statutes (Bersoff, 2014; Zachariades & Cabrera, 2012). A lack of clear guidance in these areas can make it challenging for psychotherapists to know when the duty to warn and protect exists and when it does, just how to implement it. Many health professionals find conflicting information between statutes, legal rulings, ethical obligations, and their understanding of what their duties and obligations are.
Further, some commentators highlight that once a warning is given to an intended victim there may be no follow-up or additional assistance provided. As Weinstock et al. (2006) point out, once an intended victim has been warned, it may actually “inflame the situation” and increase the likelihood of danger because there is not much a victim can do unless the threat is immediate (p. 528). Psychotherapists may also have concerns that when they breach confidentiality to warn and protect, that they may be harming the psychotherapy relationship by violating their client’s trust, possibly causing greater difficulties (Carlson, Friedman, & Riggert, 1987).
Additionally, very little training is offered to mental health professionals on their jurisdiction’s legal requirements and in how to effectively implement them. For example, guidance is needed on any required threshold for dangerousness and likely harm that necessitates action, how to define and determine if a threat is imminent, how quickly the psychotherapist must take required actions upon learning of a threat, and how much latitude the psychotherapist is allowed in exercising her or his own judgment in each of these areas.
In recent years, the issue of what constitutes harm has come to the forefront. For example, should psychotherapists act on the duty to warn and protect with a client who is HIV-positive or suffers from AIDS and who discloses the intent to have unprotected sex with another individual (Huprich, Fuller, & Schneider, 2003)? Similarly, what actions can and should a psychotherapist take regarding an impaired client (e.g., substances, limited visual acuity, etc.) leaving the psychotherapist’s office, knowing that she or he has reduced ability to safely drive an automobile? These, among numerous other related circumstances may raise a range of dilemmas for psychotherapists who are endeavoring to fulfill their legal and ethical obligations.
Recommendations for Psychotherapists
- Know the laws and regulations in your jurisdiction. Be sure to review them on your licensing board’s website and stay current on the literature relevant to their implementation in your jurisdiction.
- Become knowledgeable about the prediction of dangerousness through ongoing training, continuing education activities, and reading of the relevant literature. When indicated, conduct ongoing clinical assessments of clients that are consistent with prevailing professional practice standards.
- When unsure of your assessment of a client, or of your obligations under the law, consult with knowledgeable colleagues, including legal experts in your jurisdiction.
- Be sure to address all exceptions to confidentiality with your clients and ensure their understanding of these exceptions and your obligations in each of these circumstances through the ongoing informed consent process.
- Before breaching confidentiality, exhaust all other options to address the dangerousness such as a modified treatment plan, to include the possibility of civil commitment.
- When obligations are not readily apparent, engage in a thoughtful and comprehensive decision-making process before taking action (See for example, one developed by Chenneville, 2000).
- Advocate for the provision of ongoing training in your jurisdiction by experts to help develop and maintain your expertise in this important area of practice.
- If you are concerned about the laws in your jurisdiction become an active advocate in the legislative process such as through involvement in the American Psychological Association’s Practice Directorate and your State, Provincial, or Territorial Psychological Association.
Cite This Article
Barnett, J. E., & Coffman, C. (2015, May). Confidentiality and its exceptions: The case of duty to warn. [Web article]. Retrieved from http://www.societyforpsychotherapy.org/confidentiality-and-its-exceptions-the-case-of-duty-to-warn
Barbee, P. W., Combs, D. C., Ekleberry, F., & Villalobos, S. (2007). Duty to warn and protect: Not in Texas. Journal of Professional Counseling: Practice, Theory, and Research, 35, 18-25.
Bersoff, D. (2014, July). Protecting victims of violent patients while protecting confidentiality. American Psychologist, 69(5), 461-467.
Carlson, R. J., Friedman, L. C., & Riggert, S. C. (1987). The duty to warn/protect: Issues in clinical practice. The Bulletin of the American Academy of Psychiatry and the Law, 15, 179-186.
Chenneville, T. (2000). HIV, confidentiality, and duty to protect: A decision-making model. Professional Psychology: Research and Practice, 31, 661-670.
Corey, G., Corey, M. S., & Callahan, P. (2007). Issues and ethics in the helping professions (7th ed.). Pacific Grove, CA: Brooks/Cole.
Huprich, S. K. Fuller, K. M., & Schneider, R. B. (2003). Divergent ethical perspectives on the duty-to-warn principle with HIV patients. Ethics & Behavior, 13, 263-278.
Jaffee v. Redmond (95–266), 518 U.S. 1 (1996). Retrieved from http://jaffee-redmond.org/cases/jr-opin.htm
Kampf, A., McSherry, B., Thomas, S., & Abrahams, H. (2008). Psychologists’ perceptions of legal and ethical requirements for breaching confidentiality. Australian Psychologist, 43, 194-204.
Miller, D. J., & Thelen, M. H. (1986). Confidentiality in psychotherapy: Knowledge and beliefs about confidentiality. Professional Psychology: Research and Practice, 17, 15-19.
National Institutes of Health. (2015). The Hippocratic Oath. Retrieved from http://www.nlm.nih.gov/hmd/greek/greek_oath.html
Pabian, Y. L., Welfel, E. R., & Beebe, R. S. (2009). Psychologists’ knowledge of their states’ laws pertaining to Tarasoff-type situations. Professional Psychology: Research and Practice, 40, 8-14.
State of Maryland. Courts and Judicial Proceedings Article. §5-609. Duty to Warn, Protect, or Treat.
Tarasoff v. Regents of the University of California, 529 P.2d 553 (Cal. 1974).
Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976).
Weinstock, R., Vari, G., Leong, G. B., & Silva, J. A. (2006, December). Back to the past in California: A temporary retreat to a Tarasoff duty to warn. Journal of the American Academy of Psychiatry and the Law, 34(4), 523-528.
Werth, J. L., Welfel, E. R. & Benjamin, G. A. H. (2009). The duty to protect: Ethical, legal, and professional considerations for mental health professionals. Washington, DC: American Psychological Association.
Younggren, J. N., & Harris, E. A. (2008). Can you keep a secret? Confidentiality in psychotherapy. Journal of Clinical Psychology: In Session, 64, 589-600.
Zachariades, F., & Cabrera, C. (2012). The duty to warn revisited: Contemporary issues within the North American context. Journal of Ethics in Mental Health, 7, 1-5.
Thank you for the informative article, I noticed one of the statute citations is not up to date (Courts and Judicial Proceedings Article, § 5-609b). (Not §509b).