Breach Of Confidentiality

– The Legal Implications Essay, Research Paper

Breach of confidentiality: the legal implications when you are seeking therapyThe legal Implications when You are seeking TherapyI. The need for confidentiality in therapyA. Establish trustB. A patients bill of rightsThesis: The duty to warn has created an ethical dilemma for psychological professionals. II. Therapists face a moral problemB. Requirement by law to breach confidentialityC. Exceptions for breaching confidentialityD. Prediction of violenceE. Impact on clientI. The future outlook for therapy A. Conflicting views between the legal and psychological professionsPeople 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:x 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 individual ( Edge, 63 ). x When the client is a potential danger to himself or herself ( Bourne,487 ). x If the client is a criminal defendant and uses insanity as a defense ( Bourne, 487 ). x 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. All that is mandated by the opinion is that the therapist exercise that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [their particular profession] under similar circumstances Within the broad range of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability; proof aided by hindsight, that he or she judged wrongly is insufficient to establish negligence ( Annas, 198 ). The therapist is faced with an immense challenge. He has to rely onto himself or herself only. Only aided by his or her professional training to evaluate the client and taught and /or self-learned ethic