The licensing board censured Ms. Talmud, reminding her that she treated Ms. Shalom in her capacity as a licensed social worker in the United States, not Israel. In addition, basic ethical principles of autonomy and human dignity entitled Ms. Shalom to have a voice in any decision about disclosing material offered in confidence.
Confusion about three commonly used terms: privacy, confidentiality, and privilege, often complicates discussions of ethical problems in this arena. Figure 1 attempts to illustrate the breadth of coverage for each of the concepts (described below) using a Venn diagram. At least part of the confusion flows from the fact that in particular situations these terms may have narrow legal meanings quite distinct from the broader traditional meanings attached by mental health practitioners. Many difficulties link to a failure on the part of professionals to discriminate among the different terms and meanings. Still other dilemmas stem from the fact that legal obligations do not always align with ethical responsibilities.
Dr. Orne’s release of the audiotapes caused considerable debate within the profession despite authorized release (Burke, 1995; Chodoff, 1992; Goldstein, 1992; Joseph, 1992; Rosenbaum, 1994). Unlike the Simpson and Foster cases, the Sexton case involved release of the audio records approved by a family member with full legal authority to grant permission. In some circumstances, courts may order opening a deceased person’s mental health records. Examples might include assisting an inquest seeking to rule on suicide as a cause of death or to determine the competence of a person to make a will should heirs dispute the document at probate. Cases 1 through 3 involved situations with clear legal authority; however, often mental health professionals will encounter circumstances in which the solution must rely on ethical principles as well as legal standards (Werth, Burke, & Bardash, 2002). For example, in some situations, the legal standard may allow disclosure, whereas clinical issues or the mental health of others may lead to an ethical decision in favor of nondisclosure.
Ethical dilemmas will always be there in life. How a person chooses to solve them, is what matters the most. It is often an endeavor to disprove what is termed as ethical by different people. Just like in euthanasia, both parties that are for and against it feel that their views are most valid. Thus, no matter which stand one chooses to follow it will still mean going against another choice. Life is precious no matter how one looks at it. It is therefore necessary to preserve it, as only God knows the time or day that a person should die. Therefore, human beings should not advocate for euthanasia.
The hopelessness of such a situation is depicted in “The Death of the Moth” by Virginia Woolf, in which the moth incessantly endeavors to overcome the irresolvable dilemma of breaking through the barriers that contain it and visit the outside world....
Psychotherapists who work with clients infected with the human immunodeficiency virus (HIV) or who have developed acquired immunodeficiency syndrome (AIDS) must consider additional issues with respect to confidentiality and reporting obligations (Parry & Mauthner, 2004; VandeCreek and Knapp 2001). McGuire, Nieri, Abbott, Sheridan, and Fisher (1995) studied the relationship between therapist's beliefs and ethical decision-making when working with HIV positive clients who refuse to warn sexual partners or use safe sex practices. The study focused on psychologists licensed in Florida because of a state law mandating HIV-AIDS education. Although homophobia rated low among psychologists sampled, increases in homophobia linked significantly to the likelihood of breaching confidentiality in AIDS-related cases. This finding suggests that some degree of prejudice may drive behavior in these circumstances.
With respect to actual risk to public safety, little hard data exist to demonstrate that warnings effectively prevent harm, although reasonable indirect evidence does suggest that treatment can prevent violence. Obviously, ethical principles preclude direct empirical validation of management strategies that may or may not prevent people at a high risk from doing harm to others (Otto 2000; Litwack 2001; Douglas and Kropp 2002). In addition, violent behavior does not constitute an illness or mental disorder per se. We cannot treat the violent behavior, but we can treat a number of clinical variables associated with elevated risks of violence, including depression, substance abuse, and unmoderated anger (Otto 2000; Douglas and Kropp 2002).
We have not disguised or synthesized examples in the next several cases, but rather draw from public legal records that form a portion of the continually growing case law on the duty to warn. The cases themselves do not necessarily bespeak ethical misconduct. Rather, we cite them here to guide readers regarding legal cases that interface with the general principle of confidentiality.
The most recent scholarly colloquy on the issue began with Bersoff calling for an end to state statutes enacted after the Tarasoff decision that require therapists to warn the intended victim, police, and/or others when a patient voices serious threats of violence. He argued that such laws may actually interfere with therapy by deterring patients from revealing violent intent, because the therapists will have informed new patients of this exception to confidentiality. As an alternative to laws mandating that therapists disclose such threats, Bersoff suggests “discretion to disclose” (p. 461). He discusses this in terms of sensible options short of violating confidentiality (e.g., seeking consultation, recommending hospitalization, and extending therapy sessions to manage imminent threats). If these fail, the therapist could then opt to disclose (p. 466). Huey (2015) calls this a “Catch-22” situation, noting that any rules undercutting sacrosanct confidentiality create a situation in which the ethical necessity of informed consent has an unintended consequence in that truly open psychotherapy is preceded by informed consent that acts to preclude it. Huey notes that properly informed patients will choose not to reveal imminent suicidal intent, if they are unwilling to be hospitalized. Pedophiles who might consider seeking treatment would have to forgo it or face mandatory reporting, felony conviction, and lifetime public registration.
Although not all states have specifically enacted laws making malpractice actions an exception to privilege, one must allow defendant therapists to defend themselves by revealing otherwise confidential material about their work together. Likewise, no licensing board or professional association ethics committee could investigate a claim against a mental health practitioner unless the complainant waives any duty of confidentiality that the therapist might owe. In such instances, the waiver by the client of the therapist’s duty of confidentiality or any legal privilege constitutes a prerequisite for full discussion of the case. While some might fear that the threat to reveal an embarrassing confidence would deter clients from reporting or seeking redress from offending therapists, procedural steps can allay this concern. Ethics committees, for example, generally conduct all proceedings in confidential sessions and may offer assurances of privacy to complainants. In malpractice cases, judges can order spectators excluded from the courtroom and place records related to sensitive testimony under seal from the public’s view.
Dr. Bizzie clearly behaved in an unethical and negligent manner by not attending more directly to his client's needs. Even those rare mental health professionals who once asserted that one should never disclose confidential information without the consent of the client in the early post-Tarasoff era (e.g., Dubey, 1974; Siegel, 1979) or those who still advocate “absolute” confidentiality (Karon & Widen, 1998) would not likely counsel inaction in the face of such a risk. There are many steps Bizzie could have taken short of violating the client's confidentiality. Most obviously, he should have attempted (at the very least) to learn her location and assure himself that help would reach her if he could not. Although suicidal threats or gestures may prove manipulative rather than representing a genuine risk at times, only a foolish and insensitive colleague would ignore them or attempt to pass them off glibly to another.