Confidentiality & the Duty to Warn: Ethical and Legal Implications for the Therapeutic Relationship

By: James R. Corbin, MSW, LSW

Overview

• Examination of ethical and legal imperatives of client confidentiality.
• The uneasy yet necessary alliance between the mental health system and the law.
• Shared history and unavoidable intersection of law and mental health.
• The importance of clinicians having forensic social work knowledge.

Therapeutic Jurisprudence

• Coined by David Wexler and Bruce Winick.
• Focuses on the impact of legal systems on mental health and vice versa.
• Important in addressing societal issues like divorce, crime, and family violence.
• Relies on expertise from both legal and mental health fields.

The Conundrum of Confidentiality

• Ethical responsibility to maintain client confidentiality is crucial.
• Compared to attorney/client privilege in law.
• NASW and CSWA codes guide ethical decisions in social work.
• Must balance legal compliance and ethical practice.

NASW Code of Ethics (1996)

• Protect client confidentiality during legal proceedings.
• Seek minimal disclosure if required by court.

Summary of Tarasoff

• Mandated reporting by professionals when clients may harm themselves or others.
• Tarasoff v. Regents of the University of California set a precedent for duty to warn.
  • Case involved a murder following a threat disclosed in therapy.
  • Court ruled that therapist had a duty to warn victim.

Limits of Confidentiality and Privilege: A Legal Analysis

• Distinction between confidentiality (ethical) and privilege (legal).
• Practitioners must know state-specific statutes and case law.

Relevant Case Laws

• David v. Lhim (1983): Duty to warn foreseeable victims.
• Chrite v. United States (2003): Duty to warn specific victim.
• Jablonski v. United States (1983): Duty to use available information to protect victims.
• Mavroudis v. Superior Court (1980): Threats must be imminent and specific.

Guidelines for Clinicians (Reamer, 2003)

• Evidence of client threat to a third party.
• Evidence of foreseeability and imminence of violent act.
• Identify probable victim.
• Follow steps to protect potential victims and maintain confidentiality.

Case Vignette

• Example of a custody case involving a child, Bobby, and complex family dynamics.
• Therapist's role in maintaining confidentiality while addressing family concerns.
• Importance of independent family evaluation to assess risks.

Legal and Ethical Considerations

• Clinician's duty to uphold confidentiality and distinguish therapeutic from legal roles.
• Balance between the child’s therapeutic needs and legal implications of family disputes.

Concluding Remarks

• The complexity of working with dangerous clients and maintaining ethical standards.
• Importance of consultation, documentation, and understanding legal protections.

References

• Includes references to APA guidelines, NASW codes, and case law precedents relevant to confidentiality and duty to warn.

These notes summarize the ethical and legal intricacies of maintaining client confidentiality within therapeutic settings, highlighting the importance of understanding both professional codes of practice and legal obligations.