Dangerousness, confidentiality, and the duty to warn

Legal Aspects in Treating Rapists

The development of new evaluation treatment methods for rapists and child molesters has created unique legal and ethical problems for therapists and researchers dealing with this population. These clients by definition are more dangerous than those normally dealt with by psychotherapists. As a consequence, greater care must be taken to protect the client, the therapist, the staff, and potential victims from the sexual assaults of the rapist or child molester. Rada outlines the various legal and ethical problems involved in dealing with such dangerous individuals.

A critical element of working with a child molester or rapist is to have a detailed understanding of his history, his current behavior, his response to treatment, and his current ability to control his behavior. The very act of obtaining such information, however, generates issues of confidentiality and privileged communication normally not dealt with by the average therapist. Rada explores the issues of confidentiality, privileged communication, and informed consent to acquaint the reader with the potential problems incurred while working with such clients.

Conflicts in the Surgeon's Duties to the Patient and Society

Surgeons may face a dilemma in which their obligations to their patients and their obligations to others or society may conflict. One way of examining these conflicts is through a model as depicted in Fig. 1. When both the patient and society are benefited (eg, in cases of routine surgical care), the surgeon may proceed with the planned treatment. In situations where it is agreed that both the patient and society will be harmed (eg, surgeon involvement in capital punishment or in many cases of deception), the surgeon should avoid acting in a manner against that of the patient. Many situations, however, involve the need to weigh the benefits and burdens of both the patient and society. In these cases, surgeons need to analyze carefully all of the ethical and legal issues involved, and make a decision based on their own set of values.

The duty to warn and protect--impact on practice

OBJECTIVE

To discuss the concepts of the duty to protect and the associated threat to confidentiality and their impact on practice for Canadian psychiatrists.

METHOD

We review these concepts and provide a synthesis of legal cases impacting psychiatric practice.

CONCLUSION

The onus is on the psychiatrist to make him or herself aware of the current state of the legal obligation with respect to duty to protect. The evolving concept of duty to protect has and will continue to have significant impact on the practice of psychiatry.

Wrapped in silence: psychotherapists and confidentiality in the courtroom

The impact of the Austrian Psychotherapy Act, which, in contrast to legal provisions in the United States, does not provide for any exceptions to breach confidentiality, is compared with the effects of U.S. law on dealing with confidentiality. The authors investigated the impact of this law in light of three common situations in psychotherapy that may jeopardize strict confidentiality: treating potentially dangerous patients, giving testimony, and serving as a psychotherapist in prison. Under the strict provisions of the Austrian Psychotherapy Act, a breach may be excusable in the case of a highly probable danger, but Austrian psychotherapists cannot be obliged to serve as witnesses or as experts in civil or criminal cases, as American psychotherapists can. Psychotherapy in prison, where release is contingent on the success of the therapy and the divulging of information could be in the interests of the patient as well as the court and the public, requires a modified dealing with confidentiality.

Tarasoff in the Canadian context: Wenden and the duty to protect

The precedent-setting 1976 US court decision of Tarasoff v. Regents of the University of California established a "duty to protect" whereby psychotherapists are held responsible to protect the potential victims of their clients' violent behaviour. The purpose of this article is to review and discuss this duty in the context of Canadian law and the 1991 Alberta court decision of Wenden v. Trikha, Royal Alexandra Hospital and Yaltho. The current Canadian interpretation of the duty to protect and guidelines for avoiding such liability are presented.

Residents' decisions to breach confidentiality

This study assessed variables involved in physician decisions to breach confidentiality in cases of patients' self-reported past crimes. Seventy internal medicine residents completed a questionnaire containing case vignettes of patients' self-reports of crimes; likelihood of informing the police was ascertained. Results were analyzed according to the type and cost of the crime, previous criminal record, patient characteristics, and intent of the patient to commit future crimes. Results also were analyzed by postgraduate year of the resident. Patient characteristics of race and socioeconomic status had no effect on the decision (p less than 0.122 and p 0.182), although age did (p less than 0.001). Reports of past violence (p less than 0.001), previous criminal record (p less than 0.001) and high-cost crime (p less than 0.007) increased the likelihood of breaching confidentiality. Future intent affected the decision (p less than 0.005), but less than reports of past violence. No differences were seen among postgraduate years of respondents (p less than 0.873). Residents base decisions to breach confidentiality on factors other than the future intent of specific violence. This finding has legal and ethical implications.

Emergency physicians' duty to warn and protect: a critique and guidelines

For ten years, psychotherapists in California have practiced under a court decision which imposed a duty to warn intended victims of violent crimes. Other cases extended the scope of the psychotherapists' duty to warn to an alarming degree. Although there have been no court cases involving emergency physicians, it is reasonable to assume that, under certain circumstances, the duty to warn could be extended to primary care physicians. Emergency physicians should familiarize themselves with applicable case law and should be aware of measures to use to avoid potential civil liability.

Confidentiality and secret-keeping on an inpatient unit

In the book Lying, Bok (1979) observes that "difficult choices arise for all those who have promised to keep secret what they have learned from a client or a patient." She asks if there are "limits to this duty of secrecy" (p. 156). As a result of the Tarasoff decision (1976), requiring therapists to take actions that may include warning potential victims in order to protect society from dangerous patients, there has been an active reexamination of what these limits should be for psychiatrists. The psychiatric literature on confidentiality, like Bok's discussion, has been concerned primarily with the individual doctor-patient relationship. There are, however, unique clinical and moral problems concerning confidentiality that arise in the specific setting of a psychiatric inpatient unit. The need for staff members to shift back and forth between work with an individual and work with a group creates particular tensions around private communications. I hope to clarify the nature of these tensions through a discussion of one inpatient unit's struggles to define appropriate limits to medical confidentiality in a hospital setting.

Ethical and legal issues confronting college health

More than 11 million students currently attend institutions of higher education in the United States. While this segment of the population traditionally constitutes a young, healthy cohort, experience demonstrates that college and university health services play a critical role in assuring student health maintenance, completion of school, consumer health education, and the development of sound health practices and behaviors. In examining institutional policies and protocols governing the support and the delivery of student health services, several critical ethical issues emerge from both a macro and micro orientation. As university and college resources become more scarce and budget decreases increase, institutions are reestablishing priorities. Oftentimes, the question of continued support of campus based health services is raised. Suggestions range from discontinuing their operation, to dramatic decreases in their services, to requiring them to become fully self-sufficient (i.e., through mandatory prepayments or fee-for-services mechanisms and elimination of general fund support). At a macro level, such discussions raise issues associated with social justice and whether the universities and colleges should serve in a loco parentis (paternalistic) role. This essay more specifically addresses several micro issues that directly impinge on the delivery of health services to millions of college and university students.