Author: Elizabeth Gaskill, LICSW, NASW Ethics Hotline Member
Newsletter - November 1996
In the September 1996, FOCUS article on Ethical Issues, Nancy Levine strongly urged social workers, when they make contractual agreements for service, to be explicit in what they tell their clients about the issue of confidentiality and its limits. We as clinicians, as well as the NASW Code of Ethics, place a high priority on maintaining the privacy of clients. Breaching a client's confidentiality and right to privacy, without first obtaining a client's informed consent, should be done only for "compelling professional reasons," as stated in the 1993 NASW Code.
As many social workers are aware, a revised NASW Code of Ethics has been completed. It will be printed in the November 1996 National NASW News, and will be implemented on January 1, 1997. The new Code of Ethics will speak in more detail about a specific area where breach of confidentiality arises, that of the duty to warn.
In many articles on social work ethics, it has been pointed out that what social workers do is based on values, and social work ethics are really social work values in action. An ethical dilemma often occurs when two or more social work values are in conflict, i.e., the client's right to privacy and the social worker's obligation to warn a third party of the possibility of harm to him or her. The dilemma occurs because both values cannot be equally upheld. Frequently, not only will there be an ethical dilemma, but there may also be a thin boundary between issues of professional ethics, good clinical practice, and legal responsibilities and obligations.
Often, where the duty to warn takes priority over the client's right to privacy, it is clear and mandated by law. In other situations, however, the issue can be knotty and difficult because the situation is not clear and can involve personal, moral and/or religious differences between the clinician and client. In other words, not only is one weighing ethical issues, but clinical and legal complications as well.
The principle of warning a third party and/or the police was first established in California in 1976 in the case of Tarasoff v. Regents of the University of California. This case set the precedent ruling that psychotherapists have a duty to warn a potential victim when the professional believes there is a clear danger to a third party even if this means breaching the client's confidence. The California Supreme Court concluded: "The protective privilege ends where the public peril begins." All Tarasoff cases have involved threats with weapons or arson.
In February 1990, the Massachusetts legislature passed a law known as Duty to Warn Under Massachusetts Law, setting out the legal obligations of social workers and other mental health professionals in duty to warn situations. As in the Tarasoff ruling, the statute notes that the principle of duty to warn is an exception to the general principle that a social worker shall not "disclose any information about a client acquired from or revealed in the course of or in connection with the performance of the social worker's professional services." The exception requiring the social worker to disclose the client's confidential information occurs when there is "an explicit threat to kill or inflict serious bodily injury upon a reasonably identified victim or victims and the client has the apparent intent and ability to carry out the threat."
The decision to warn or not warn a third person creates a dilemma for a clinician between an ethical and legal obligation to maintain a client's confidentiality and an ethical and legal obligation to warn third persons of potential harm to them. The potential for a difficult outcome to either decision is great. It becomes imperative for social workers, in making thoughtful and careful decisions, to keep well documented records and to be consistent with the law. At points, what may be most helpful for all concerned is to seek consultation and, of course, document it.
A clear case of duty to warn occurs when a client reports clear intent to harm another and has both the motivation, intention and means to fulfill this threat. It becomes incumbent on the clinician to report the client to both the police and the third party. A situation not involving weapons or arson, but where there is an explicit threat, would be the client who is HIV positive, is aware of the risks of transmission, knows how to avoid such risks, but has no intention of doing so and wants to infect his partner. A more complicated case would be in the instance of an HIV positive client who is not overtly threatening to harm a spouse or partner but is unwilling to disclose or take precautions against the risk of transmission.
Although there may be no explicit oral threat there may be an explicit behavioral threat. Many states now have statutes requiring duty to warn in such instances. To date, however, Massachusetts does not require partner notification. The other side of the coin, however, is that the clinician, by not disclosing, runs the risk of suit should the partner at a later point become infected and learn that she/he had not been informed by either the infected client or the client's therapist. The therapist has a difficult decision here and should probably seek legal consultation on a case-by-case basis.
A different kind of potentially complicated case could involve a client who has been asked by a relative and/or friend who is dying to help in that person's suicide. On the one hand, this is a personal, moral and religious decision on the part of the client. But assuming that the client has told the clinician of his/her intentions to help with the death, does this implicate the therapist and require a duty to warn obligation? What if the therapist, who is allegedly neutral and impartial, discovers that his/her own beliefs radically conflict with the client's such that there no longer is neutral, "transitional" space for the client and therapist to explore and examine the client's concerns and wishes in this situation. Will the therapist feel impelled to act on this knowledge and should he/she? Clearly this represents a situation where it would be advisable for the clinician to seek consultation. Legal consultation should also be considered.
Each of these situations raises the potential of harm to a third party. The social worker must make an assessment of the potential for real threat and harm to the other. Things to think about include the "nature of client communication," "explicit threat to kill or inflict serious bodily injury," "apparent intent and ability to carry out the threat," and whether the social worker has taken "reasonable precautions" to communicate the potential threat. If it is unclear whether the facts give rise to a duty to warn obligation, clinicians should consult colleagues, and maintain written notes of all such consultations to demonstrate sound professional practice. Legal consultation should also be considered.
And finally, the duty to warn can result in legal problems for the clinician whether or not he/she takes reasonable precautions. At a later time, a third party might file a complaint about the social worker with the Board of Registration for breach of confidentiality for what the social worker deemed to be taking reasonable precautions. Failure to exercise a duty to warn, however, could result in a lawsuit by the estate of the deceased. The Massachusetts' statute provides legal protection for social workers from such liability for those who follow it: "Any duty owed by a social worker to warn or in any other way protect a potential victim or victims shall be discharged if the social worker takes reasonable precautions. No cause of action shall lie against, nor shall legal liability be imposed against, a social worker by victims, un
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