Chapter 6 - Confidentiality: Ethical & Legal Issues (pg 282-307)

Confidentiality: Ethical and Legal Issues

Confidentiality, Privileged Communication, and Privacy

• Therapists must become familiar with concepts of confidentiality, privileged communication, and privacy, as well as the legal protection afforded to the privileged communications of clients and the limits of this protection

Confidentiality

• Confidentiality is rooted in a client’s right to privacy, is at the core of effective therapy

  • It is the counselor’s ethical duty to protect private client communication

  • It is an ethical and legal responsibility

• There are limits to confidentiality…sometimes the counselor may have to warn or protect the client or others even if it breaks confidentiality

• Confidentiality belongs to the client

  • psychotherapists may legally and ethically reveal a client’s confidences if a client waives this right

• Six-step ethical practice model for protecting confidentiality rights:

  • Preparation

    • To inform clients about the limits of confidentiality, you must understand the limits yourself

    • Do your homework and own searching regarding your personal morals

    • Clearly discuss what confidentiality is to your clients and provide room for questions

  • Tell clients the truth

    • Inform clients on the limits of confidentiality and obtain their consent for this

    • Explain any roles that might impact confidentiality

  • Obtain “truly informed consent” before disclosing voluntarily

    • Make disclosures only if legally unavoidable

    • Obtain and document your client’s signed consent before disclosing this information

  • Respond ethically to legal demands for information

    • Notify your client of a pending legal demand for disclosure without the client’s consent

    • Limit disclosure of confidential information to the extent that is legally possible

  • Avoid preventable breaches of confidentiality

    • Avoid making unethical exceptions to the confidentiality rule…maintain policies aimed at protecting confidentiality

    • Monitor your note taking and record keeping practices

    • Avoid dual roles that create conflicts of interest in the courtroom

    • Anticipate legal demands and your response to such requirements; empower clients to act protectively on their own behalf

    • Do not confuse laws that permit disclosure with laws that require disclosure

  • Talk about confidentiality

    • Model ethical behavior and practice; invite a dialogue with clients about confidentiality as needed

    • Teach ethical practices to students and supervisees

    • Educate attorneys, judges, and consumers

Privileged Communication

• Privileged Communication: a legal concept that generally bars the disclosure of confidential communications made to a psychotherapist from any judicial proceedings or court of law

  • specifics of this privilege vary from state to state

• Clinicians should understand the privilege laws in the states where they practice

  • In most instances, clinicians may not disclose confidential information without the client’s written consent or a judicial order

• When these privilege laws apply, therapists can also refuse to answer questions in court or refuse to produce a client’s records in court

• If a client knowingly and rationally waives this privilege, the professional has no legal grounds for withholding the information

• Professionals are obligated to disclose information that is necessary and sufficient when a client requests it

  • ONLY if it is specifically requested and only to the individuals or agencies that are specified by the client

Privileged Communication in Group Counseling, Couples and Family Therapy, and Child and Adolescent Therapy

• The legal concept of privileged communication generally does not apply to group counseling

  • May also have limitations in couples counseling, family therapy, or child and adolescent therapy

  • the therapist is still bound by confidentiality with respect to circumstances not involving a court proceeding

• In states where no law exists to cover confidentiality in group therapy, courts may use the ethics codes of the professions regarding confidentiality

• In the case of child and adolescent clients, there are restrictions on the confidential character of disclosures in the counseling relationship

• . No clear judicial trend has emerged for communications that are made in the presence of third persons

  • Clients have a right to be informed about any limitations on confidentiality in group work, child and adolescent therapy, and couples and family therapy

The Jaffee Case and Privileged Communication

• June 13, 1996…United States Supreme Court ruled that communications between licensed psychotherapists and their clients in the course of diagnosis or treatment are privileged

  • therefore protected from forced disclosure in cases arising under federal law

• The Supreme Court ruling in Jaffee v. Redmond states that “effective psychotherapy depends upon an atmosphere of confidence and trust in which the patient is willing to make frank and complete disclosure of facts, emotions, memories, and fears.”

  • 7-2 decision

  • represented a victory for mental health organizations because it extended the privilege of confidentiality

• In the Jaffee case, an on-duty police officer, Mary Lu Redmond, shot and killed a suspect while attempting an arrest

  • victim’s family sued in federal court, alleging that the victim’s constitutional rights had been violated

  • court ordered Karen Beyer, a licensed clinical social worker, to turn over notes she made during counseling sessions with Redmond after the shooting

    • social worker refused, asserting that the contents of her conversations with the police officer were protected against involuntary disclosure by psychotherapist–client privilege

  • Court rejected her claim of psychotherapist–client privilege…jury awarded the family $545,000

  • The Court of Appeals for the Seventh Circuit reversed this decision

    • concluded that the trial court had erred by refusing to afford protection to the confidential communications between Redmond and Beyer

  • Jaffee, an administrator of the victim’s estate, appealed this decision to the Supreme Court

    • Supreme Court upheld the appellate court’s decision, clarifying for all federal court cases, both civil and criminal, the existence of the privilege

  • The Court recognized a broadly defined psychotherapist–client privilege and further clarified that this privilege is not subject to the decision of a judge on a case-by-case basis

• The Court’s decision to extend federal privilege to licensed social workers leaves the door open for inclusion of other licensed psychotherapists, such as licensed marriage and family therapists, licensed professional counselors, and mental health counselors

Privacy

• Privacy: the constitutional right of individuals to be left alone and to control their personal information

  • definition as a matter of law

• Practitioners should exercise caution with regard to the privacy of their clients

  • It is easy to invade a client’s privacy unintentionally

• An example of one of the most pressing situations in which privacy is an issue:

  • employer’s access to an applicant’s or an employee’s psychological tests,

  • parents’ access to their child’s school and health records

  • third-party payer’s access to information about a client’s diagnosis and prognosis

• If counselors have occasion to meet clients outside of the professional setting, it is essential that they do not violate their privacy

  • especially true in small towns

• Most professional codes of ethics contain guidelines to safeguard a client’s right to privacy

• Practitioners who also teach courses, offer workshops, write books and journal articles, and give lectures must ensure that client privacy is protected

  • It is of the utmost importance that practitioners take measures to adequately disguise their clients’ identities when using examples

• three options for presenting case material ethically:

  • seek the client’s permission to publish, which some consider ethically questionable because it entails inserting the clinician’s professional agenda into the client’s treatment

  • disguise case material for publication, which may or may not release the therapist from needing to secure the client’s permission

  • develop composite case material from two or more clients

Confidentiality and Privacy in a School Setting

• Managing confidentiality is a challenge most school counselors face

• School counselors need to balance their ethical and legal responsibilities with three groups

  • the students they serve

  • the parents or guardians of those students

  • the school system

• When minors are unable to give informed consent, parents or guardians provide this informed consent

  • Parents may also need to be included in the counseling process

• Counselors have an ethical obligation to safeguard the confidentiality of minors to the extent that it is possible

  • In most states, discussions with students are not privileged communication

• The ASCA (2016) ethics code states that school counselors “recognize their primary ethical obligation for confidentiality is to the student but balance that obligation with an understanding of the parents’/guardians’ legal and inherent rights to be the guiding voice in their children’s lives” (A.2.f.)

• School counselors have an ethical responsibility to ask for client permission to release information

  • should clearly inform students of the limitations of confidentiality and how and when confidential information may be shared

• The ASCA (2016) guideline regarding parents

  • the school counselor “informs parents/guardians of the counselor’s role to include the confidential nature of the school counseling relationship between the school counselor and student” (B.1.f.)

• Laws regarding confidentiality in school counseling differ

  • In some states, therapists in private practice are required to demonstrate that attempts have been made to contact the parents of children who are younger than 16

    • school counselors are not required to do so

• It is necessary that school counselors exercise discretion in the kind and extent of information they reveal to parents or guardians about their children

• When a school counselor withholds information from school personnel and administrators about students in counseling, especially with regard to risk-taking behaviors, the counselor “may be seen as something other than a team player

Ethical and Legal Ramifications of Confidentiality and Privileged Communication

• Clients in counseling are involved in a deeply personal relationship and have a right to expect that what they discuss will be kept private

• Confidentiality is necessary in order to encourage clients to develop the trust needed for full disclosure and for the other work involved in therapy

  • Clients must feel free to explore all aspects of their lives without fear that these disclosures will be released outside the therapy room

• When it does become necessary to break confidentiality, it is good practice to inform the client of the intention to take this action and also to invite the client to participate in the process

• All states now have statutes that require professionals who suspect any form of child abuse to report it to the appropriate agencies

  • Even when the knowledge was gained through confidential communication with clients

Exceptions to Confidentiality and Privileged Communication

• Counselors must explain any exceptions so that clients are aware of the limits of confidentiality

  • It is best to include these exceptions in the informed consent document as well as discussing them verbally with the client

• Ethical standards provide guidelines regarding the circumstances under which confidentiality cannot be maintained, but therapists must exercise their own professional judgment in specific situations

• Practitioners may need to reveal certain information when there is serious and foreseeable danger to an individual or to society

• Examples of circumstances in which it is permissible to share information with others in the interest of providing competent services to clients:

  • A client requests a release of information to oneself or to others

  • An insurance company requests information for reimbursement

  • Legal rules (e.g., subpoena) require disclosure of all documentation (progress and process notes, and session recordings)

  • The counselor consults with experts or peers

  • Other professionals on a treatment team require information to coordinate care of a client

  • A counselor becomes incapacitated or dies and another counselor has been appointed to assist clients and maintain documents

  • Parents request case notes or documentation about their minor who is seeking counseling

  • A parent who has legal custody (even though the parent may not have physical custody) requests documentation

  • A client reveals having engaged in sexual behavior with a mental health provider who treated the client

  • An adult client reports watching child pornography

  • A client convicted for domestic violence within the last seven years admits owning a gun

  • The couples counseling informed consent document has a “no secrets” policy

• Legally mandated exceptions to confidentiality and privileged communication:

  • Disclosure of confidential information is ordered by a court

  • Client waiver of the privilege

  • Clients file complaints and litigation against their counselors

  • Clients claim psychological damage in a lawsuit

  • Civil commitment proceedings are initiated

  • Statutes involving child, elder, or dependent abuse or neglect mandate disclosure

  • Clients pose a danger to others or to themselves

• The limitations of confidentiality may be greater in some settings and agencies than in others

• Exceptions to confidentiality vary by jurisdiction

  • Counselors are required to know the laws that govern their area of practice

    • If clients are informed about the conditions under which confidentiality may be compromised, they are in a better position to decide whether or not to enter counseling

• In addiction treatment facilities, the policy may be “what is said to one staff member is said to all.”

  • Reasoning could be may be to avoid triangulation which would be detrimental to patients

  • This frees the entire treatment staff to share information about patients as a part of the treatment process, and it eliminates concerns about breaching confidentiality

• If you breach confidentiality in an unprofessional manner you open yourself to both ethical and legal sanctions

  • expulsion from a professional association

  • loss of certification

  • license discipline (fines, censure, probation, or revocation)

  • malpractice suit

• To protect yourself against such liability, it is essential to become familiar with all applicable ethical and legal guidelines pertaining to confidentiality

Privacy Issues With Telecommunication Devices

• Helping professions have a duty to consider the limits of privacy when using technology innovations

• All technology platforms pose potential ethical problems in protecting client privacy

• Counselors who text their clients must be mindful of the ethical issues that can arise even if this has become a standard of care

• when communication can be easily captured, copied, transferred, disseminated, and stored in written text, through picture or video means, or verbally, the danger for a breach of confidentiality substantially increases

• Ignorance is not an excuse!!!

  • The ethical burden is on clinicians to ensure trustworthy encryption by cautiously examining statements and guarantees made by software vendors

• Clients should also understand how to protect their own devices when using them for the purpose of receiving counseling or for scheduling and canceling appointments

  • clients should also be encouraged to find a secure and private location when attending counseling sessions

• Measures must be taken when clients are living with others who do not honor the client’s privacy

  • Consider a woman whose abusive partner snoops through her technology to control with whom she communicates

  • Consider a gay or trans client who is seeking mental health services but is not “out” to parents who may search through their phone or laptop

• Using email to send confidential material is another source of potential invasion of a client’s privacy

  • It is the counselor’s responsibility to make sure emails arrive in a secured environment

  • therapists who plan to exchange emails with their clients provide clients with a statement

• Therapists and their clients should carefully consider privacy issues before agreeing to send email messages to clients’ workplaces or homes

Implications of HIPAA for Mental Health Providers

• The Health Insurance Portability and Accountability Act of 1996 (HIPAA) was passed by Congress to promote standardization and efficiency in the health care industry and to give patients more rights and control over their health information

• HIPAA is a federal law that contains detailed provisions regarding client privacy, authorization for release of protected health information, and transfer of records

• The HIPAA Privacy Rule was designed to provide a uniform level of privacy and security on the federal level

  • The Privacy Rule requires health plans and other covered entities to establish policies and procedures to protect the confidentiality of health information about their patients

• Health care providers need to determine whether they are covered entities under HIPAA

  • If you submit a claim electronically, even once, you are likely to be considered a covered entity for HIPAA purposes

  • To determine that you are a “covered entity,” you need to answer affirmatively to all three of these questions

    • Are you a health care provider?

    • Do you transmit information electronically?

    • Do you conduct covered transactions?

• In “HIPAA Overview,” Jensen (2003a) describes the four standards of HIPAA:

  • Privacy requirements

    • practitioners need to take reasonable precautions in safeguarding patient information

    • practitioners need to have working knowledge of and guard patients’ rights to privacy in disclosure of information, health care operations, limiting the disclosure of protected information, payment matters, protected health information, psychotherapy notes and a patient’s medical record, and treatment activities

  • Electronic transactions

    • HIPAA aims to create one national form of communication, or “language,” so that health care providers can communicate with one another electronically in this common language

  • Security requirements

    • Minimum requirements are outlined in HIPAA that are designed to safeguard confidential information and prevent unauthorized access to health information of patients

    • Technological advances, including electronic record keeping, challenge practitioners’ abilities to maintain security

  • National identifier requirements

    • It is essential that covered entities be able to communicate with one another efficiently

    • Health care providers and health plans are required to have national identification numbers that identify them when they are conducting standard transactions

The Duty to Warn and to Protect

• Mental health professionals have to protect other people from potentially dangerous clients and to protect clients from themselves

• The American Psychiatric Association (2013b) provides this standard

  • “When, in the clinical judgment of the treating psychiatrist, the risk of danger is deemed to be significant, the psychiatrist may reveal confidential information disclosed by the patient

The Duty to Protect Potential Victims

• One of the most difficult tasks therapists grapple with is deciding whether a particular client is dangerous

  • It can be extremely difficult to decide when it is justified to breach confidentiality and notify and protect potential victims

• Although practitioners are not generally legally liable for their failure to render perfect predictions of violent behavior of a client, an inadequate assessment of client risk can result in liability for the therapist, harm to third parties, and inappropriate breaches of client confidentiality

• Therapists faced with potentially dangerous clients should take specific steps to protect the public and to minimize their own liability

  • take careful histories

  • advise clients of the limits of confidentiality

  • keep accurate notes of threats and other client statements

  • seek several consultations

  • record steps they have taken to protect others

• Practitioners should consult with a supervisor or an attorney because they may be subject to liability for failing to notify those who are in danger

• If a determination is made that an individual poses a high risk for harming an identifiable third party, mental health practitioners must develop and implement an intervention plan

• Mossman believes clinical attention should be paid to risk prevention (rather than risk prediction) and that society should seek broad measures aimed at addressing known risks for violent behaviors among people who have and who do not have mental health problems

• Nearly every jurisdiction has a different interpretation of the duty to warn and the duty to protect

  • some having no statute or case law related to the issues and others with very specific legal guidelines

  • Most states permit (if not require) therapists to breach confidentiality to warn or protect victims

  • Some states specify how that duty is to be discharged

  • In some cases, the duty is to contact the police

    • can be complicated if the community to which the client belongs does not trust the police

  • In some states, the warning can go directly to the intended victim, if that contact information is held by the practitioner

  • Some states grant mental health practitioners immunity or protection from being sued for breaching confidentiality if they can demonstrate that they acted in good faith to notify or protect third parties

• Some practitioners are concerned that laws requiring, rather than permitting, a warning may dissuade potentially violent individuals from seeking treatment or fully revealing their intentions

  • or that potential liability may discourage therapists from treating such clients because their ability to predict violent behavior is limited

• Thapar v. Zezulka 1999 case

  • Texas Supreme Court ruled that mental health workers do not have a duty to warn and protect their clients’ known and intended victims

  • the court found that it was unwise to impose a duty to warn on mental health practitioners

• Currently, 19 states have Red Flag Laws in which counselors are obligated to break confidentiality by informing law enforcement when clients have revealed that they or someone in their household is engaging in domestic violence or is at risk for suicidality

  • Red Flag Laws authorize law enforcement to temporarily remove guns from the home until that person is safe

• Duty to warn: applies to those circumstances where case law or statute requires the mental health professional to make a reasonable effort to contact the identified victim of a client’s serious threats of harm, or to notify law enforcement of the threat

• Duty to protect: applies to situations in which the mental health professional has a legal obligation to protect an identified third party who is being threatened

  • in these cases the therapist generally has other options in addition to warning the person of harm

• The duty to protect provides ways of maintaining the client’s confidentiality

• The duty to warn requires a disclosure of confidential information to the person who is being threatened with harm

• Exercising a duty to warn can result in inappropriate breaches of confidentiality that damage the therapeutic relationship, which can end treatment

• Most mental health practitioners assume that they are mandated to take reasonable steps to warn an identified person of a foreseeable and imminent danger

  • However, in many situations, warning is not the only option or the best course to follow

    • Other appropriate actions include hospitalizing the client, increasing the frequency of therapy sessions, notifying the police, or referring a client for a psychiatric consult or for prescribing medication

• The real question for counselors to ponder is this

  • How can I fulfill my legal and ethical duties to protect human life, act in the best interest of the client, and remain protected from potential liability?

Implications of Landmark Court Cases

• responsibility to protect the public from dangerous acts of violent clients entails liability for civil damages when practitioners neglect their duty

  • failing to diagnose or predict dangerousness

  • failing to warn potential victims of violent behavior

  • failing to commit dangerous individuals

  • prematurely discharging dangerous clients from a hospital

The Tarasoff Case

• August 1969 - Prosenjit Poddar

  • voluntary outpatient at the student health service at the University of California, Berkeley

  • in counseling with a psychologist named Moore

  • told Moore about intention to kill an unnamed woman (who was readily identifiable as Tatiana Tarasoff) when she returned home from extended trip to Brazil

  • Moore made the assessment that Poddar was dangerous and should be committed to a mental hospital for observation - called campus police, told about death threat, conclusion that Poddar was dangerous

  • campus officers took Poddar into custody & questioned but let him go when he gave evidence of being “rational” and promised to stay away from her

  • more sent letter requesting assistance from chief of campus police → Moore’s supervisor told him to have the letter returned and destroyed along with his case notes

  • Tarasoff & family were unaware of threats, Poddar killed Tarasoff when she returned

• Tarasoff’s parents filed suit against board of regents and university employees for not notifying her of the threat

• California Supreme Court ruled in favor of the parents in 1976, holding that a failure to warn an intended victim was professionally irresponsible

• court’s ruling requires that therapists breach confidentiality in cases where the general welfare and safety of others is involved (not all states)

  • first accurately diagnose the client’s tendency to behave in dangerous ways toward others

  • court held that merely notifying the police was not sufficient to protect the identifiable victim

• expanded in 1976 - “obligation to use reasonable care to protect the intended victim against such danger”, not a ‘duty to warn’

• duty to protect - can be discharge in multiple ways

  • hospitalization - voluntary or involuntary

  • reassessment

  • medication changes

  • referral

  • warning potential victims

  • calling police

  • informing state protection agency

• Negligence - failure to conduct an assessment for potential violence and failure to warn a third party of imminent danger, not in failing to predict any violence that may be committed

• client confidentiality can be readily compromised - ethical and legal responsibilities to clients and legal obligations to society

• the codes of ethics of most mental health professions incorporate this concept, and it is generally assumed that the duty to warn and to protect is a federal legal requirement

• Mandatory reporting laws only apply to threats regarding future violence - past violence may not be reported and are protected as confidential info

  • Walfish et al (without being reported to proper authority and/or prosecuted)

    • 69% chance - client says they physically assaulted someone

    • 33% chance - client says they sexually assaulted someone

    • 13% chance - client says they murdered someone

• mental health professionals should

  • be familiar with the warning signs and risk factors for violence and the potential for acting out

  • conduct a formal risk assessment with all clients who show any warning signs for violence

  • be familiar with the treatment options and resources for managing high-risk clients in their local area

• therapists need to be especially careful about grounds for liability including abandonment; failure to consult, refer, or coordinate treatment with a physician; maintaining adequate records; and responding appropriately if a suit is filed

Ewing v Goldstein (2004)

• therapists must break confidentiality if they receive information from a family member about a client’s intention to seriously harm another person

• licensed therapists in California could be held liable for failure to issue a Tarasoff warning when the information regarding the dangerousness of a client comes from a client’s family member rather than from the client

The Bradley Case

• Bradley Center v. Wessner (1982)

• Wessner voluntarily admitted to Georgia facility for psychiatric care → upset over wife’s extramarital affair

  • repeatedly threatened to kill her and her lover

  • admitted to a therapist that he was carrying a weapon in his car

  • given an unrestricted weekend pass to visit his children, who were living with his wife - saw wife & lover, killed them

• children filed a wrongful death suit - psychiatric center had breached a duty to exercise control over Wessner

• Georgia Supreme Court ruled that a physician has a duty to take reasonable care to prevent a potentially dangerous patient from inflicting harm

Jablonski Case

• Jablonski v. United States (1983)

• Philip Jablonski had agreed to a psychiatric examination at a hospital → physicians determined no emergency & no basis for involuntary commitment

• Melinda Kimball went with him to hospital again & expressed fear for her life, told to stay away from him

• Jablonski killed Kimball

• Meghan Jablonski filed suit for the wrongful death of her mother, Kimball

• Ninth U.S. Circuit Court of Appeals found that failure to obtain Jablonski’s prior medical history constituted malpractice - failure to commit

Hedlund Case

• Hedlund v. Superior Court (1983)

  • LaNita Wilson and Stephen Wilson had received psychotherapy from a psychological assistant, Bonnie Hedlund

  • Stephen told therapist he intended to harm LaNita, and later on her did in the presence of her child

• allegation was that the child had sustained “serious emotional injury and psychological trauma.”

• the duty to warn of potentially dangerous conduct applied to the mother, not to her child, against whom no threats had been made… BUT therapist could be held liable for injuries sustained by the intended victim’s child if the violent act was carried out

Guidelines for Dealing with Dangerous Clients

• guidelines generally specify how to deal with

  • emotionally disturbed individuals

  • violent behavior

  • threats

  • suicidal possibilities

  • other circumstances in which counselors may be legally and ethically required to breach confidentiality

• one problem with identifying potential for violence - lack of communication between all parties working with, or on behalf of, a potentially violent client

  • counselors working with potentially high-risk clients should have a release of information in place so a more complete picture of the client’s level of functioning can be determined

• many counselors find it difficult to predict when clients pose a serious threat to others - clients may express feelings or thoughts about doing physical harm to others, does not mean that they will

• in making decisions about when to warn, counselors should

  • seek consultation

  • exercise reasonable professional judgment

  • apply practices that are commonly accepted by professional

• suggestions

  • informed consent clear in terms of the forfeiture of confidentiality because of a threat of violence to self or others

  • know how to contact your professional organization for assistance

  • review the code of ethics of your professional organization on matters applicable to your practice

  • familiarize yourself with professionals who are experienced in dealing with violence and know how to reach them

  • if there is any hint of violence in the client’s history, request clinical records from previous therapists, if they exist

  • take at least one workshop in the assessment and management of dangerous clients or volatile life events

  • Determine that the limits of your professional liability insurance are adequate

• Wheeler & Bertram - risk management guidelines

  • Consult with colleagues or a supervisor

  • Consult with an attorney if you are not clear about your legal duty

  • Know the law in your state and whether it requires a communicated threat against a specifically identifiable victim or if it encompasses a broader duty

  • Obtain prior medical and behavioral history

  • Inquire about a client’s access to weapons, homicidal ideation, and intentions, which would include whether a specific victim is involved

  • In cases of immediate threat by a client, do not hesitate to take steps to prevent harm to yourself even if it means potentially fracturing your relationship with the client

  • Make referrals where appropriate

  • Consider all appropriate steps to take and the consequences of each

  • Know and follow the policy of your institution

  • Document the people you consult, all the actions you take, those you reject, and the rationale behind each of your decisions

Implications of Duty to Warn & to Protect for School Counselors

• courts have uniformly held that school personnel have a duty to protect students from foreseeable harm

• school personnel may need to act on student reports of their peers’ plans related to intended violence

• school officials may be held accountable if a student’s writing assignments contain evidence of premeditated violence

• Hermann & Finn - school counselors are legally and ethically obligated to work toward preventing school violence

  • may find themselves legally vulnerable because of their role in determining whether students pose a risk of harm to others and deciding on appropriate interventions

• school shootings

  • since 2013 - 904 incidents of gunfire on school grounds (310 deaths, 607 injuries)

  • shooters had planned their attacks in advance in 93% of these incidents

  • in four out of five school shootings, at least one other person had knowledge of the attacker’s plan

• 2022 Ethan Crumbley/Oxford High School shooting case

  • counselors currently being sued for failing to determine that Ethan posed a risk of harm to others

  • were aware of violent drawings and notes Ethan had made that threatened violence against classmates

  • seem to have also been informed by a teacher that Ethan had been searching for ammunition on the Internet the previous day

  • notified Ethan’s parents that they had 48 hours to get counseling for Ethan or Child Protective Services would be contacted BUT his bag wasn’t searched & he was allowed to go back to class

  • he proceeded to kill four students and injure seven other people that day

• school counselors would do well to take all threats of violence, including online threats, seriously

• ethics codes “provide no explanation as to what constitutes a potentially disruptive or damaging behavior, and individual school counselors are likely to interpret this differently”

  • but, preventing students from harming other students seems to be implicit in the duty of school personnel

• school counselors have a duty to exercise reasonable care to protect students from foreseeable harm, but they are only exposed to legal liability if they fail to exercise reasonable care

• counselors need to assess student’s dangerousness by evaluating the plans for implementing the violent act and the student’s ability to carry out the act

• suggested that school counselors be prepared to lead and to assume responsibilities that may be beyond the scope of their formal training

  • respond to the needs and demands of students, staff, and administrators and adopt multiple roles, which may create inherent role conflicts

The Duty to Protect Suicidal Clients

• therapists must inform clients that they may have an ethical and legal obligation to break confidentiality when they have good reason to suspect suicidal behavior

• legal duty to protect suicidal clients

• troublesome issues - degree of influence, competence, level of involvement with a client, responsibility, legal obligations, and ability to make life-or-death decisions

• risk of a malpractice action reduced if therapist can demonstrate that

  • a reasonable assessment and intervention process took place

  • professional consultation was sought

  • clinical referrals were made when appropriate

  • thorough and current documentation was done

• malpractice - neglecting to take action to prevent harm when a client is likely to take the step of suicide & by taking actions that violate a client’s privacy when there is not a justifiable basis for doing so

• law does not require practitioners to always make correct assessments of suicide risk, but a legal duty to make assessments from an informed position and to carry out their professional obligations in a manner comparable to what other reasonable professionals would do in similar situations

Ethical Issues in Assessing and Treating Nonsuicidal Self-Injury

• self-injury is a predictor of suicide, but can’t assume that most people who self-injure are suicidal

• counselors need education and training in effective ways of intervening with clients who self-injure

  • need to understand the futility of focusing mainly on stopping the behavior and instead address the underlying dynamics of self-injurious behavior if they hope to facilitate behavioral change

• self-injury can be a way to transform emotional pain into physical pain, which is often easier to cope with for many people

• important to monitor and continually assess for the risk of serious harm and the potential for suicide

School Counselor Liability for Student Suicide

• school counselors are expected to be aware of the warning signs of suicidal behavior, and they need to have the skills necessary to assess a student’s risk for suicide

• if they do not possess competency in identifying and managing students who may be suicidal - need supervision, consultation, and direction from counselors who do

• school counselors are not expected to predict all suicide gestures or attempts, they are expected to use sound judgment in making clinical decisions, and their reasoning should be documented in their notes

• assessment that student is at risk for suicide - parent or guardian need to be notifed, they have a legal right to know

Court Cases in School Settings

• Eisel v. Board of Education (1991)

  • 13-year-old Nicole was involved in Satanism, made a suicide pact with another student who then shot Nicole and then herself

  • students had told their school counselor that Nicole wanted to take her own life, counselor confronted Nicole about it but she denied & the counselor never told the parents

  • Nicole’s father brought suit against the counselors on the basis of their breach of duty to intervene

  • court found that school counselors have a duty to use reasonable means to attempt to prevent a suicide when they know about a student’s suicidal intentions

    • an adolescent is more likely to share thoughts of suicide with friends than with a school counselor, teacher, or parent

  • the burden involved in making a telephone call is minor considering the risk of harm to a student who is suicidal

• Wyke v. Polk County School Board (1997)

  • a 13-year-old named Shawn, who attempted suicide two times at school before finally killing himself at home

  • school officials were aware of the suicide attempts but failed to notify Shawn’s mother

  • several experts in the field of suicide prevention testified about the need for suicide prevention training in schools

    • mandatory written policies requiring parental notification

    • holding students in protective custody

    • arranging for counseling services

  • court held that the school could be found negligent for failing to notify the decedent’s mother

Guidelines for Assessing Suicidal Behavior

• can learn to recognize common crises that may precipitate a suicide attempt and reach out to people who are experiencing these crises

• expected to complete a comprehensive assessment of clients, especially with clients who pose a threat to themselves

  • suicide risk assessment requires clinicians to identify client risk factors, warning signs, and protective factors that can work to mitigate the risk

• therapists who fail to conduct an adequate assessment of a client are vulnerable to a malpractice claim

• even if client denies suicidal intent, if evidence of serious depression - inquire further and possibly make a referral to a psychiatrist

• in assessment interview, evaluate:

  • depression

  • suicide ideation

  • suicide intention

  • suicide plans

  • presence of any risk factors associated with suicide

  • obtain information about a client’s past treatment

• danger signs

  • Take direct verbal warnings seriously

  • Find out if there were previous suicide attempts

  • Identify clients suffering from depression, a characteristic common to all suicide victims. Sleep disruption, which can intensify depression, is a key sign

  • Be alert for feelings of hopelessness and helplessness, which seem to be closely associated with suicidal intentions

  • Consider the client’s level of impulsivity, which can increase risk for both planned and unplanned suicide

  • Consider the client’s ability to problem solve. Limited problem-solving abilities can exacerbate risk

  • Explore carefully the interpersonal stressor of loss and separation

  • Monitor severe anxiety and panic attacks

  • Ascertain whether there has been a recent diagnosis of a serious or terminal health condition

  • Ask whether the individual has a plan to die by suicide and, if so, gather the details of the plan

  • Identify clients who have a history of severe alcohol or drug abuse because they are at greater risk than the general population

  • Be alert to client behaviors such as giving away prized possessions, finalizing business affairs, or revising wills

  • Determine whether clients have a history of previous psychiatric treatment or hospitalization

  • Determine whether the individual has access to lethal means, especially firearms, and take steps to limit this access

  • Assess the client’s support system

  • Ascertain whether there has been any suicide in the family

  • If clients verbalize suicidal ideation, talk with them about whether they want to die or want the pain to end

• responsibility to prevent suicide if they can reasonably anticipate it

• liability generally arises when a counselor fails to act in such a way as to prevent the suicide or when a counselor does something that might contribute to it

• counselors with limited experience in suicide assessment should not rely on their own clinical judgment; rather, they should seek consultation and supervision from professionals with experience

Safety Plans

• common intervention in suicide prevention with high-risk clients

• templates are available in a variety of formats

• characteristics:

  • therapist and the client collaborate

  • personalized

  • assist the client in weathering the storm of suicidal thoughts and impulses

  • introductory paragraph designed to instill hope

    • most suicidal thoughts are transitory & decrease when engaging in alternative behaviors

  • clients list their reasons for living

    • if cannot find a reason - diagnostic and indicative of the need for a higher level of care

  • identify a few self-soothing behaviors in which they can engage

  • list the names and phone numbers of two people they can call for assistance or just to have a conversation as a distraction

    • if unable to, may be indicative of the need for a higher level of care

  • provided with the phone numbers of emergency suicide prevention resources (suicide hotlines, mobile crisis intervention teams)

  • advised to go to the nearest emergency room if they try everything on the safety plan and are still feeling suicidal

• can be usefully applied in cases involving client self-injury as well

• clients can use safety plans when they are experiencing distress and emotional pain

• important to conduct suicide risk assessments at intake and periodically with clients who self-injure

• essential to create a safe and nonjudgmental climate that encourages clients to talk about their emotional pain and to explore alternative coping strategies to stress

Managing Suicidal Clients

• Know how to determine whether a client may be at risk for attempting suicide

• Assess each new client for current or past suicidal thoughts

• Deal candidly with matters of confidentiality, privilege, and privacy

• Be knowledgeable about the legal requirements bearing on mandatory reporting of suicidal clients and limits of confidentiality in your jurisdiction

• Clearly outline the limits of confidentiality and the steps you will need to take if your client poses a risk of self-harm

• Obtain education, training, and supervision in suicide risk assessment, suicide prevention, and crisis intervention methods

• Keep up to date with current research, theory, and practice regarding suicide prevention

• Work with the suicidal client to create a supportive environment

• Periodically collaborate with colleagues and ask for their views regarding the client’s condition. This collaboration can be critical in understanding the level of risk

• Consult with and involve family members and significant others, when appropriate

• Collaborate with clients in developing a written safety plan that addresses steps they can take to reduce suicidal risk

• Explain to clients the difference between situations in which you must breach and may breach confidentiality in the case of suicidal ideation

• Specify your availability to your clients; let them know how they can contact you during your absences

• Realize that you may have the responsibility to prevent suicide if the act can be reasonably foreseen

• Recognize the limits of your competence and know when and how to refer

• Use sensitivity and caution in terminating or referring a client who has been or is currently suicidal. Be careful to ensure that this transition goes smoothly and that the client does not feel abandoned in the process

• Consider hospitalization, weighing the benefits and the drawbacks

• For services that take place within a clinic or agency setting, ensure that clear and appropriate lines of responsibility are explicit and are fully understood by everyone

• Work with clients so that dangerous instruments are not within easy access. If the client possesses any weapons, put them in the hands of a third party

• Consider increasing the frequency of the counseling sessions

• Work with clients’ strengths and desires to remain alive

• Attempt to communicate a realistic sense of hope

• Be willing to communicate your caring

• As much as possible, involve the client in the decisions and actions being taken. It is important for clients to share in the responsibility for their ultimate decisions

• Document the client’s mental status, your ongoing risk assessments, and your treatment plan decisions in the client’s record. Document options you considered, options you ruled out, actions taken, results of your interventions, and follow-up

• Know your personal limits and your own reactions to working with suicidal clients. Recognize the stresses involved and the toll this work takes on you personally and professionally. Seek appropriate consultation, practice self-care, and try to limit the number of suicidal clients with whom you work

• Attempt to develop a supportive network of family and friends to help clients face their struggles. Discuss this with clients and enlist their help in building this resource of caring people

• *remember that clients are ultimately responsible for their own actions and that there is only so much that you can reasonably do to prevent self-destructive actions

Protecting Children, the Elderly, and Dependent Adults from Harm

• ethical and legal obligation to protect children, older adults, and dependent adults from abuse and neglect

• expected to know how to assess potential abuse and to report it in a timely fashion

• confidentiality does not apply in cases of child abuse and neglect, or in cases of elder and dependent adult abuse or neglect

  • professional is required to report the situation under penalty of fines and imprisonment

• if adults reveal in a therapy session that they are abusing or have abused a minor, older adult, or otherwise vulnerable adult, the matter must be reported

• if the therapist has a reasonable suspicion that abuse or neglect is taking place, most states require a report

• not required to investigate, only report

• Mandatory reporting is designed to encourage reporting

• failure to report can result in criminal or civil liability, sometimes action against the professional’s license

• some states require that professionals complete continuing education workshops on assessment of abuse and proper reporting as a requirement for granting a license or for renewing a license

• some states permit therapists to break confidentiality and file a report; some states require it

• the duty to protect elders from harm is stronger than a practitioner’s obligation to maintain client confidentiality

• major types of elder abuse

  • physical

  • sexual

  • psychological or emotional

  • neglect

  • abandonment

  • financial or material exploitation

• The National Center on Elder Abuse (NCEA) is dedicated to educating the public about elder abuse, neglect, and exploitation and its tragic consequences

• mental health practitioners are expected to inform clients about the limits of confidentiality pertaining to the duty to report cases of abuse

• professionals who fail to file a mandated report because of the concern that nothing will be done about it or who fear that a report could make matters worse or because they are not certain that their suspicions are valid are likely to be in violation of the law and the ethics codes of most professional organizations