Duty to Warn

Confidentiality is one of the pillars of therapy. If there were no expectation of confidentiality, people would be unlikely to be as honest about what's going on with them, as a result of shame/guilt, fear of judgment, or fear that someone else would find out what they said. Therefore, the law has taken steps to protect clients' right to confidentiality, with only a few notable exceptions. For example, therapists are "mandated reporters," meaning that they are required by law to notify the relevant authorities of any suspected cases of abuse or neglect of a child, elderly or disabled person.

Another exception to confidentiality that is more controversial and varies significantly from state to state is the so-called "duty to warn." Laws related to the duty to warn are based on legal precedent set in the case of Tarasoff v. The Regents of the University of California. The court decided (albeit by a narrow margin) that a therapist may be held liable and subject to civil suit if s/he has reason to believe that a client poses an imminent threat to another person and does not take steps to warn that person. In fact, the client in question did not tell his therapist at the University of California the name of the person he planned to kill (Tarasoff), but the court felt that the therapist would have been able to deduce that person's identity from what the client did say.

This decision understandably sent shock-waves through the mental health community: therapists could be held liable if a client posed a threat to someone, even if that someone was not clearly identified! Professional associations and legislative bodies were faced with the challenge of determining how best to respond to this landmark case. Because of the controversial nature of the decision, States have varied significantly in the resulting laws. Many States, including California (where the Tarasoff case took place), and Massachusetts (where I live) passed laws requiring mental health professionals to notify the police and intended victim of a threat (in other words, they established a "duty to warn"). Other states passed laws giving mental health professionals permission to warn, meaning that they could divulge information about a threat without fear of repercussions for violating confidentiality. Some States (such as Texas) only allow the therapist to warn the police (not the intended victim), and some leave it up to the clinical judgment of the therapist.

According to Herbert (2002), "At present, one knows what to do in only half of the jurisdictions in the United States — those that impose a duty to warn. Any 'permission' jurisdiction could, without warning, turn out to be a 'duty' jurisdiction, and in the one-quarter of the states that maintain a legal vacuum on the issue, one can only guess what to do" (p. 423).

Interestingly, New York's newly-passed gun-control law takes the duty to warn in a different direction: it mandates that therapists notify a state official if they believe a client poses a threat to self or others. The client would then be blocked from (legally) purchasing guns, and police would be able to confiscate any guns in the client's possession.

So, what are your thoughts on how therapists should respond to threats against someone's life? Should there be a "duty" to warn, simply "permission" to warn, or neither? Who should be warned: the police, the intended victim, or some other state official? What should the response be?

Magic Numbers

When it comes to age, our society is full of "magic numbers" - ages at which something changes with our rights, privileges or opportunities. I bet we all remember turning 16 (driving), and 21 (drinking). My aunt just celebrated 65, which comes with eligibility for Medicare, closely followed by social security retirement benefits. However, while we feel more excitement about some of these landmarks, they don't carry the same societal "magic" as age 18.

Sure, we look forward to getting to vote. Some people look forward to 18 because they can join the military, or legally smoke. No one really looks forward to becoming eligible for jury duty. But, all of these rights come at the age of 18 because that is the age we are considered "adults." The magic age of "majority."

While most of us hopefully realize that becoming an adult is a process rather than an occasion, the legal significance of the magic age 18 also has significance in the treatment context. I'm reflecting on this topic this week because I have a client in the intensive outpatient program who turns 18 this week. Since we are an "adult" program, we already structure it with the expectation that people are coming volutarily and responsible for their own choices. Whether she is 17 or 18 will not change our direct interventions or treatment plan. However, it will change a few things - namely that she, rather than her parents, will have to (get to) sign the legal paperwork, including consenting to treatment, and choosing to whom information can be released.

Her mother is concerned that she will not sign a release to allow us to speak with her parents. That will be up to her, of course, and I can imagine a kid who is developmentally trying to individuate from her family (and ambivalent about treatment) enjoying being able to exclude her parents from her treatment, but I hope she doesn't. I think family support can be vital in recovery, and secrecy tends to work against recovery. The parents still have some bargaining chips, of course - while the magic number says she is an adult, she is still financially dependent on her parents, and hopes to go to college in the fall. I doubt she will want to jeopardize that!

How do you think about and deal with the transition from minor to adult in your clinical work?

Another Ethical Quagmire

Another ethical dilemma has arisen for me this week, in the context of the partial hospital program where I work. Specifically, a current client's cousin may be referred from our inpatient unit to the PHP. My client is understandably reluctant to have a family member present in treatment with her (beyond the standard meetings with immediate family, which don't include the rest of the group, and still leave the majority of treatment separate from family). However, management does not consider that sufficient reason not to accept the cousin.

I have serious misgivings about the idea of attempting to treat clients who are related to each other in the same group program. I've had to stop and think about it more to try to articulate my reasons. My initial reaction was that it should be obvious we can't accept the cousin - an assumption I made because it has been the policy at all the other places I've worked that relatives cannot be in group treatment together, nor can they be seen by the same outpatient providers. Since it is apparently not as obvious as I thought, here are what I consider the relevant issues:

1) Dual Relationships
Obviously, family members have an existing relationship with one another outside of treatment. By accepting them both into the same treatment program, we are putting both in the uncomfortable position of having a dual relationship - family member and group member. Dual relationships are discouraged by professional codes of ethics because they raise the possibility of other ethical issues. Some of those are discussed below, but here I'll focus on boundaries.

Specifically, it can be very hard for clients and clinicians to sort out where one role stops and another begins. What interactions between two related clients are coming out of their relationship as group members, and which coming out of their family relationship? Can there even be group member interactions between them that aren't in some way informed by the family relationship? Nobody can set aside all the things they already know or believe about a person, and limit their interactions to only what they've learned or experienced in the treatment setting. The chances that one will reveal too much about the other, or make judgments and assumptions on the basis of past interactions, is high. On the flip side, it can be hard to leave treatment at treatment, and not have group interactions influence outside interactions. It's hard to compartmentalize, and easy to forget how one knows something.

2) Confidentiality
While both relatives may agree up front to keep things disclosed in treatment confidential...they may not actually do so. There is more temptation to tell other family members what a relative disclosed in treatment, versus what strangers shared. There is also the very real possibility that something from treatment will later be used as ammunition in the heat of an argument. Both are likely aware of this possibility, and may self-censor as a result.

Staff may also (inadvertently) struggle with confidentiality. Just as it may be hard for related clients to separate what they know from outside treatment, and what they know from inside treatment, it can be hard for clinicians to remember what they learned from one client, what they learned from the other client, what the clients said in private, and what they said in group.

3) Conflict of Interest
This may be the most concerning aspect of this dilemma for me. The primary "interest" - priority/responsibility - of the clinician is the client's welfare. Whenever there are multiple clients (e.g., group, couples or family therapy), there is potential for a conflict of interests - something that's good for one might be bad for another. The clinician faces a definite conflict - internally and externally - whenever faced with that kind of choice.

The most often cited example occurs in family therapy when the clinician has to file a report of possible child abuse/neglect. While the clinician notifies the whole family of her legal obligations at the beginning of treatment, it still usually causes problems when a report actually has to be filed. The decision is made easier, however, by clear legal standards (i.e., mandated reporting) and the general ethical guideline to advocate for the most vulnerable/least powerful person's interests.

Assuming no clear power differential between our potential related clients, a conflict of interests between the two would be much harder to resolve. Imagine, for example, they have an argument, and both declare: "If she continues treatment, I'm dropping out!" Assuming neither budges from this position, even after a cooling-off period and talking with staff and peers, the treatment team is faced with quite the dilemma: there are two medically and psychiatrically compromised individuals who want treatment...but not if the other one is present. We might choose the more medically unstable, or the least ready for discharge, but the other one might reasonably claim that we did not fulfill our obligation to her. We might decide to discharge both, to avoid any claim of discrimination against one, but we'd have to find some way to ensure adequate aftercare for both. Yes, it would be quite the quagmire.

There is also the question of whether a conflict of interests already exists if we accept one and not the other. My contention is that our primary responsibility is to the client who has already been admitted to our program. The other is on an inpatient unit within the same agency, so some may say that we have a responsibility to her as well. However, I disagree - the inpatient team is responsible for her treatment, and arranging reasonable aftercare. If she can't come to us, that means they need to find a way for her to go elsewhere, or access a different level of care (IOP vs. partial, perhaps), or have more frequent outpatient appointments and monitoring until her relative discharges and she can start our program. There are solutions. Our responsibility is to ensure the best possible treatment for the client we already have.

It seems clear to me that dual relationships, possible breaches of confidentiality (and self-censorship out of fear of such a breach), and conflicts of interest would interfere with the quality of treatment for both. Instead of providing good treatment to one, we're providing treatment to both that is only ok...at best. That is not ethically sound, damages our reputation in the community, and could influence our reimbursement by insurance...and that's not even considering the cost to the individual clients in unresolved symptoms and ongoing struggle. But, again, this is just my opinion.

Informed Consent

I'm in an uncomfortable position with one of my clients (at the eating disorders partial hospital program) where there is a mismatch between what she wants and what the program requires - specifically, she is already in what can be considered a healthy weight range, but the program "requires" weight gain up to a BMI of 21. Disagreements over this requirement are not an uncommon occurrence, given that individuals with eating disorders are often highly ambivalent, and have highly distorted thinking. However, it does raise some interesting clinical and ethical questions.

I'd like to frame the issue in terms of two ethical concepts. First, all healthcare providers are required to obtain informed consent for all treatment services. That means clients have the right to be fully informed about the suggested treatment, along with its possible risks and benefits; have the right to accept or decline, with possible consequences of both choices outlined; and have the right to withdraw their consent at any time. Informed consent assumes that individuals are legally competent to make decisions for themselves - i.e., adults with sufficient cognitive functioning to fully understand and weigh the risks and benefits, and make treatment decisions accordingly.

Second, informed consent is closely related to another core ethical standard for social work practice (as outlined in the NASW Code of Ethics): self-determination. Self-determination is the freedom to make decisions for oneself, without coercive influences. It means that clients have the right to decide their own goals and values, whether or not we agree with them. This is the basis for a push toward more collaborative treatment planning, with client-identified goals. The only exception recognized by the Code is when a client's choices present a "serious, foreseeable, and imminent risk to themselves or others;" that is usually interpreted to mean suicidal or homicidal intent. According to Miley, O'Melia & DuBois, in all other circumstances, "When social workers impose solutions, give direct advice, assume the role of expert, treat clients as subordinates, or in other ways control decisions, they thwart client self-determination."

So back to my dilemma. When clients are severely malnourished, it causes cognitive impairments, and may prevent someone from providing truly informed consent. In those cases, it is easily justified for the treatment team to require weight restoration as part of responsible treatment. Even so, it is very difficult (though not unheard of) to get a court order to treat a client against her will - they usually have to consent to be admitted to treatment, though as with all psychiatric admissions the legal status is "conditional voluntary," meaning that their ability to make informed treatment decisions may be impaired.

However, when someone is no longer malnourished, but we're still pushing them to gain weight against their will, that seems to violate the principle of self-determination. Yes, a client's unwillingness to weigh more than ___ lbs may be a "symptom," but over a certain point, it's not a risk issue, so they should be free to make their own choice (of course, this begs the question of what that point is). It seems like our role would be to give the information needed for them to make an informed decision - the physical and mental reasons why we recommend weight gain, along with the possible outcomes of gaining or not gaining. If it's more important to someone to feel comfortable with her weight and still somewhat preoccupied with food, vs. less preoccupation but more body image issues, that's a legitimate decision. Hopefully therapy can begin to shift the centrality of weight and body image in self-worth, which may then lead to willingness to gain additional weight.

An additional issue with consent is that we don't talk with clients about weight gain protocols at the beginning of treatment. It would definitely scare a lot more people off, but it would also be more in keeping with informed consent to tell people that they will be put on a weight restoration meal plan until they reach a BMI of 21. Without that information, it seems a little like a bait and switch - people get involved with treatment, connect to the group and team, and delve into underlying issues, and then find out that, in order to keep those positives, they have to do something they aren't willing to do.

I think that forced weight gain beyond clients' level of consent is a significant reason for relapse. If someone isn't on board and willing to be that weight, they're going to try to get back into their comfort zone as soon as they leave treatment, and getting back into the comfort zone is going to trigger the behaviors that rapidly become compulsive. We might better help clients with long-term recovery by taking things more slowly. But that's just my opinion.