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Privacy and Confidentiality in the Therapeutic Relationship

Section 3
FS 456.0575 Duty to Notify Patients
(Regulation is reprinted at the end of this section)

Questions 3 | Answer Booklet | Table of Contents

Duty to Notify Patients
Application Example...
The Tarasoff Decision

In 1974 the California Supreme Court established the principle that requires physicians and psychotherapists to warn intended victims of dangerous patients. This is known as the Tarasoff decision. It brought to widespread attention the legal principle known as the "duty to warn."

Key provisions of the duty to warn were elaborated in a 1976 court decision containing the following statement:

When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus, it may call for him to warn the intended victim of the danger, to notify the policy, or to take whatever other steps are reasonably necessary under the circumstances.

The Tarasoff decision is not a specific law. It is a legal principle based on an interpretation of laws and precedents. Therefore, the duty to warn is an evolving principle.

Note that the Tarasoff Decision ruled that the therapist should have warned the intended victim or the police. Subsequent decisions, however, have required notification of both the intended victim and the police. Also, note that the Tarasoff Decision involved a threat to commit murder. It is not clear how much violence, short of murder, requires a duty to warn.

♦ Six Principles in Carrying out Duty to Warn :
1. Carefully assess the severity of the threat and the likelihood of its being carried out.
2. Consider using any available means for reducing the violence threat, whether or not a duty to warn is involved.
3. If a client explicitly threatens to murder an identifiable victim, there is a clear duty to warn the victim and the police. If the client implies a threat of violence other than murder, the therapist should weigh the violence versus (a) the risk of violating confidentiality and (b) the risk of unduly frightening the warned individual.
4. Release no more information than is needed for the intended victim's protection.
5. Document your risk assessment and actions taken. Document judgment about the balance between risks and benefits involved.
6. Obtain the client's cooperation or consent in warning the third party if at all possible.
- Rothstein, M. A. (2014). Tarasoff Duties after Newtown. Journal of Law, Medicine & Ethics, 42(1), 104-109.

Limits of Confidentiality

Until recently, there were few generally recognized and accepted exceptions to complete confidentiality in the practice of psychotherapy (Beck, 1990). Early breaches of confidentiality were normally made in the patient's interest, such as when civil commitment or consultation with a treatment team was needed (Beck, 1990). Over time, however, the right to absolute confidentiality has been more difficult for psychotherapists to maintain. There have been dramatic increases in the legal and ethical dilemmas that have tested the limits of confidentiality in the therapist-client relationship (Boylan, Malley, & Scott, 1995). Unlike earlier cases where confidentiality was breached, these limits to confidentiality are not necessarily intended for the benefit of the client (Beck, 1990).

Boylan et al. (1995) believed that changes in the legal mandates led to changes in the ethical codes under which professionals operate. They cited three legal constraints that have been placed on therapists that have directly impacted the limits of confidentiality in the therapeutic relationship. The first is the famous Tarasoff v. Regents of the University of California (1976) case, in which the court held that therapists might need to breach confidentiality to protect third parties who may be in danger from a client being seen in therapy. The second legal constraint is the enactment of mandatory child (and elder) abuse reporting laws, which require therapists to breach confidentiality. The third legal consideration is the lawsuits brought against physicians and institutions for failing to provide adequate care to suicidal clients or patients. Beck (1990) noted that the requirement for psychotherapists to report information to third-party payers as a condition of payment is another change that has affected the limits of confidentiality. The changes in the legal climate and in ethical thinking have led therapists to view confidentiality in the therapeutic relationship as limited and no longer an absolute.

Although no longer all encompassing, confidentiality remains one of the cornerstones of the therapeutic relationship (Remley & Herlihy, 2001). Clients need to be educated about confidentiality, privileged communication, and privacy to ensure trust in the therapeutic relationship (Corey, Corey, & Callanan, 1998). One of the best ways to accomplish this is through the process of informed consent. Bednar, Bednar, Lambert, and Waite (1991) stated that it is essential for clients to understand the treatment that will be provided to them and to give their consent voluntarily and that it is the responsibility of the therapist to assess the level of the client's understanding and to make sure the choice to enter counseling was made freely. The limits of confidentiality are an important element of any informed consent.

Clients need to be aware that confidentiality and privilege belong to them, not the therapist. As such, clients have the right to waive their privacy. Clients may ask a therapist to release information regarding the therapeutic relationship to third parties (Remley & Herlihy, 2001). According to Knapp and VandeCreek (1987), clients may also implicitly waive privilege and confidentiality if they file a lawsuit or malpractice suit against a professional.

The most well-known limit to confidentiality—but one that still needs to be explained to clients—is that the therapist may decide to break confidentiality in cases where the client makes threats to harm others. In 1974, the California Supreme Court ruled in the Tarasoff case that a psychotherapist has a duty to warn third parties who have been threatened by a client being seen in therapy (Felthous, 1989). In 1976, the court issued a different holding that resulted in a broader, more robust announcement. The court held that the therapist's duty was to protect the intended victim, rather than to warn (Bednar et al., 1991). Although the Tarasoff doctrine only applies in the state of California, many states have adopted similar laws, and therapists must have knowledge of their current state laws (Knapp & VandeCreek, 1993).

Similarly, although there may be no legal duty to do so in a particular state, therapists have an ethical duty to protect clients who may be a harm to themselves due to mental illness. In terms of preventing harm, Furrow (1980) discussed the duty to prevent suicide in a hospital, the duty to control dangerous conduct, and the duty to protect. A therapist must exercise reasonable care to prevent foreseeable harm or danger that may result from a client's mental or physical incapacity (Furrow, 1980). The courts have upheld that an additional duty to protect a client is established when the client is a danger to themself (Bongar, 1991). The duty to protect has been upheld by the courts many times for clients who were hospitalized (Bongar, Maris, Berman, & Litman, 1992). It has been more difficult to hold a therapist responsible for the actions of an outpatient client (Furrow, 1980).

In addition, there are instances when the therapist may need to share client information with others. In these instances, Remley and Herlihy (2001) suggested that the "umbrella" of confidentiality be extended to cover other people. Potentially, clerical staff and other employees may handle confidential client information. In these cases, the therapist is responsible for any breaches of confidentiality that may take place. In some cases, therapists may need to consult with fellow colleagues or experts in a particular area. Although this potentially can be accomplished without revealing client identity, there may be times when providing such information is unavoidable. In these situations, it would be wise for the therapist to inform the client (Remley & Herlihy, 2001). A final instance where confidential client information is shared is when the therapist is working under supervision. One difference is that in this situation the client's identity cannot be concealed (Corey et al., 1998). Therapists in training have an ethical obligation to disclose to clients that they will be working under supervision and that confidentiality is limited (Remley & Herlihy, 2001).
- Werth, J., Burke, C., & Bardash, R. (Jul, 2002). Confidentiality in end-of-life and after-death situations. Ethics & Behavior, 12(3).

3 Boundaries to Confidentiality

♦ Boundary #1 - Intent
The first ethical confidentiality boundary is intent.  In the case of a self-harming client, one of the first criteria to determine if the disclosure of information is appropriate.  In many cases of self-harming clients, their actions could be misconstrued as a suicide attempt when in fact there are many other reasons for the self-mutilation.  For instance, many self-mutilating clients use their injuries as a coping strategy for stress or other issues. 

Emotional distress, especially, becomes a strong incentive to "release feelings" but without the intention to commit suicide.  In fact, one of the criteria for self-mutilation is to injure oneself without the intent of death.  So one of the points I consider is whether or not the client is in fact a self-harmer or if he or she attempted suicide. 

Wendy, age 21, had been referred by one of her professors to Ellen, on the university counseling staff, after her professor noticed slash marks on her wrists.  When Ellen asked Wendy about it, she stated, "I wasn’t trying to kill myself.   It just helps relieve the pressure when I have finals."  Ellen asked Wendy if she would submit to a physical examination, which she did. 

However, upon taking the exam, the physician discovered that the cuts in Wendy’s arms were of such a depth and angle to cause serious damage upon infliction.  Because of this new information, Ellen had reason to believe that Wendy had in fact tried, but failed, to kill herself. 

Because of this new information, Ellen asked Wendy if it would be appropriate to contact her family and notify them of her attempted suicide.  Wendy rejected the idea of contacting her parents.  She also stated that she felt that she may try again.  Ellen proceeded to inform her of the need to be placed on an inpatient unit to prevent her from further self-harm.  Think of your Wendy.  If you feel she has a danger of suicide, have you informed her ahaead of time regarding your legal responsibility to prevent her from committing suicide?

♦ Boundary #2 - Parental Disclosure
The second confidentiality boundary is parental disclosure.  In the cases of self-mutilation, that is not an attempted suicide the confidential boundaries become more and more blurred.  Because most minors are not allowed self-determination, privacy rights extend to their parents or legal guardians. 

Therefore, it is both legally and ethically appropriate to inform a parent of their son or daughter’s self-mutilation.  Although the client may protest and expressly forbid his or her counselor to not disclose this information, it is in their best interests to break the confidentiality boundaries in these instances.  Obviously an initial session with the client needed to inform him or her of your obligation regarding self-harm.

Kara wore long-sleeve shirts and pants to cover her cuts from her self –mutilation.  Her school counselor told Kara that their conversation would be kept confidential unless she was at risk of harming herself or others. After initial introductions, the counselor stated that she was concerned that Kara was engaging in self-harming behavior.

Kara quickly replied that she was not suicidal. She disclosed that she has been cutting delicate marks into her arm and legs with a razor blade. Kara told the counselor that the self-injury helps her to relieve the tension and stress accompanied with her full schedule of Advanced Placement classes. The counselor, who was unfamiliar with self-harming behaviors, immediately considered the self-cutting to be a suicidal action.

At the end of the counseling appointment, the counselor told Kara that she felt she was at risk of seriously harming herself and that she had to report this behavior to her parents. After contacting Kara's parents, the counselor documented the nature of the counseling session and referred her to a licensed psychiatrist.  Even though the counselor may have misinterpreted Kara’s intents and actions, she made the ethical decision to disclose the self-harming behavior to Kara's parents based on the information she had regarding self-mutilation.  Think of your Kara.  Do you believe it is your ethical duty to report minor clients’ self-harming behavior to his or her parents?

♦ Boundary #3 - Hospitalization
In addition to intention and parental disclosure, the third confidential boundary is hospitalization.  In the case of self-harming clients, there is always the potential for serious injury or even death should the client make a mistake and unintentionally harm him or herself.  Hospitalization is a crossing of the confidential boundaries as it brings in a third party, but generally it is in the pursuit of the clients own protection. 

However, new questions have been raised in the last few years about the effectiveness of hospitalization regarding self-mutilating clients.  Specifically, does this kind of treatment only make the client more dependent on others and not him or herself to keep from self-harming?  Or does it in fact accomplish what many practitioners believe it accomplishes, mainly, isolates the client until he or she no longer has the urge to self-harm? 

Jeanette, age 20, was a severe self-harmer.  She used several methods, including cutting, burning, biting, and using a piece of string to cut off circulation to certain parts of the body.  Believing her to be a danger to herself, her therapist, Joan, ordered her to be hospitalized for several months.  After this time, Jeanette left the hospital, but still with the urge to self-harm and because she felt betrayed by her therapist Joan, she became more extreme in her methods. 

Eventually, her hand slipped while cutting, and she began to lose a great deal of blood.  She finally decided to call an ambulance and she was taken to the hospital and readmitted.  When asked if she were willing,  to return to her therapist, Jeanette stated, "No way!  She was the one who put me in that awful place and it only made things worse.  How do I know she won’t do that to me again?" 

Evidently, hospitalization did not help Jeanette’s urge to self-harm.  So the violation of the confidentiality boundary only increased her condition and destroyed her trust in her therapist.  Think of your Jeanette.  Could his or her trust in you be jeopardized if he or she were recommended for hospitalization?

FS 456.0575 Duty to notify patients

(1) Every licensed health care practitioner shall inform each patient, or an individual identified pursuant to s. 765.401(1), in person about adverse incidents that result in serious harm to the patient. Notification of outcomes of care that result in harm to the patient under this section does not constitute an acknowledgment of admission of liability, nor can such notifications be introduced as evidence.
(2) Upon request by a patient, before providing nonemergency medical services in a facility licensed under chapter 395, a health care practitioner shall provide, in writing or by electronic means, a good faith estimate of reasonably anticipated charges to treat the patient’s condition at the facility. The health care practitioner shall provide the estimate to the patient within 7 business days after receiving the request and is not required to adjust the estimate for any potential insurance coverage. The health care practitioner shall inform the patient that the patient may contact his or her health insurer or health maintenance organization for additional information concerning cost-sharing responsibilities. The health care practitioner shall provide information to uninsured patients and insured patients for whom the practitioner is not a network provider or preferred provider which discloses the practitioner’s financial assistance policy, including the application process, payment plans, discounts, or other available assistance, and the practitioner’s charity care policy and collection procedures. Such estimate does not preclude the actual charges from exceeding the estimate. Failure to provide the estimate in accordance with this subsection, without good cause, shall result in disciplinary action against the health care practitioner and a daily fine of $500 until the estimate is provided to the patient. The total fine may not exceed $5,000.
- Florida Legislature. (n.d.). Chapter 456 Health Professions and Occupations: General Provisions. Retrieved December 27, 2018, from http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0400-0499/0456/0456.html

QUESTION 3
 What shall every licensed health care practitioner need to inform each patient about? To select and enter your answer go to Answer Booklet.

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