Obligation to Protect

By Tom Smith, Ph.D.

 

The obligation to protect means to protect not only third parties as might be in a “Tarasoff situation”, but also the client. So, the question that most practitioners want answered is does the “duty to warn” ever apply to the clinician of a client who is HIV positive and regularly having unprotected sex or sharing drug paraphernalia with an unknown partner?

At the state level, the legal theory of the duty to warn is complicated. Certain states have laws requiring practitioners (directly or with the assistance of public health authorities) to warn persons they know to be at risk for infection with a communicable disease, an STD, or HIV by their patients. Many other states have laws permitting but not requiring practitioners to warn persons that they are at risk (i.e., privilege to warn).There is no simple answer to this question; thus, consultation with legal authority may be necessary. If disclosure is required by law, the practitioner is expected to comply with the law, but not to use legal “scare tactics” to coerce the client in any way. Also, the law as it is written in California leaves room for interpretation. If the disclosure is permitted, but not required, the therapist must make a very important judgment. In most cases disclosures should be made only when there is a clear and imminent danger of serious harm to the client or another. The question is, “What constitutes serious harm or danger?” In terms of HIV infection, HIV is not a deadly weapon; if infected, one is not going to imminently die and may, in fact, live out a normal life.

In California, the law (which has been introduced and discussed above in its form of SB 705) states:

Any person who exposes another to HIV by engaging in unprotected sexual activity (anal or vaginal intercourse without a condom) when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV, is guilty of a felony. A person’s knowledge of his or her HIV-positive status, without additional evidence, is not sufficient to prove specific intent”. Moreover, there is another law that is not specific to HIV/AIDS that says, “Any person afflicted with any contagious, infectious, or communicable disease who willfully exposes him/herself to another person is guilty of a misdemeanor.

As one can easily see, there is room for interpretation here. As it turns out, it is rare indeed to have a client who “acts with the specific intent to infect the other person with HIV”, or criminal exposure. Very few cases of criminal exposure in the United States and other Western countries have been successfully prosecuted. People have sex or use drugs for a variety of different reasons and in many different states of mind. In normal circumstances that a practitioner is likely to see, there is simply no felonious behavior to be prosecuted or disclosed. The behavior may be reckless, reprehensible, repugnant, immoral and unethical, but not illegal. It is very difficult to prove “willful intent” and in most cases when a client in crisis is indicating that they are going to go out and infect someone deliberately; these are empty threats that can be neutralized by an understanding therapist who can get at the genuine intent or state of mind of the client.

More often than not, a client’s conscience and moral sense can be called upon to encourage them to voluntarily disclose. If they still are reluctant to do so, they can be encouraged to practice safe sex or needle exchange, comply with medical treatment and though repetition and the trust of the therapeutic alliance eventually be convinced that the therapist is not “out to get them”, but only wants to prevent the transmission of HIV and to protect those who are close to the client. Eventually, most change their behavior (practice safe sex, use clean needle exchange) and disclose to their partners the truth of the situation.

Clients do not tell their treatment providers everything. Most of the time, a provider does not know who the client may be infecting and so it is better to work with the client for voluntary compliance to disclose. It becomes more of a problem when the provider knows who the client may be infecting. Physicians in California can legally break confidentiality without the client’s consent to inform at risk partners of HIV infection. But, this is usually a “last resort” option. Coercion simply makes people resist and in the long run creates a climate of fear in the community and so, people to not come forward for testing or treatment. Treatment providers that too readily assume that the duty to warn is applicable in a specific case and alert partners against the will of or without the knowledge of a client might find current and future clients disinclined to be honest about sexual or drug-sharing activities or unwilling to accept testing or medical care. Crucial opportunities for counseling, support for disclosure, and prevention education might be lost under these circumstances. Thus, health-care providers should proceed cautiously and seek legal counsel before assuming that a duty to warn has been triggered or that they have a privilege to warn.

As it stands in the United States today, fully one quarter of those infected with HIV DO NOT KNOW that they are infected. Creating a coercive legal climate will not bring these people in for testing or treatment and most probably will keep them from even considering testing or treatment.

There are just too many factors involved in HIV transmission to draw a clear and distinct correspondence between HIV exposure and the immediate danger that Tarasoff is meant to address. This also is the same case for other dangerous infectious diseases such as Hepatitis C that can also kill. Currently, California law does not interpret HIV exposure as a “Tarasoff situation” and so, precludes one having to choose between legal realities and one’s ethics.

Be mindful that the primary responsibility to protect vulnerable partners is on the shoulders of the person who is HIV positive and knows it and the consequences of spreading it. This should be emphasized in the therapeutic relationship. Additionally, after 25 years into the epidemic and substantial public education, most people who are promiscuous and engage in anonymous sexual encounters or needle sharing assume part of the risk of being infected. In these situations, it is not just one person’s problem.

The ethical issue arises when the practitioner knows through the client’s admission that a specific person or persons is unaware that they are at risk for HIV transmission. So, the therapist is obligated to be informed and prepared to share the knowledge they have regarding transmission, infection, the benefits of testing and treatment and the disadvantage of not getting tested or treated, methods of prevention with the client and then assisting them in overcoming their fears of disclosing to their sex or IV drug using partners.

The ethical issue is further complicated depending upon the client’s state of mind, psychopathology, suicidal or homicidal intent and their willingness to continue risky behavior after repeated counseling to desist. If the client is mentally impaired and an imminent danger to self or others, a civil commitment is necessary. This also gives treatment providers time to collectively assess the situation and distribute the ethical risk.Finally, if a practitioner does come to the conclusion that the behavior of the client constitutes an imminent threat to potential identifiable victims, they should seek collegial and legal consultation, obtain and document such supervision and exhaust all alternatives as indicated in the above discussion before considering violating a client’s confidentiality. Bear in mind that violating confidentiality may have dire physical and legal consequences. The client may commit suicide or homicide. The partner(s) of the client may harm the client and the client may harm the treatment provider.

Best Practices regarding duty to protect.

First and foremost, make sure the client understands the limits of confidentiality and the duty to protect using formal written forms that clearly spell things out and that is signed by the practitioner and the client.If working in an agency, know all the written protocols and policies of the agency regarding confidentiality and seek supervision as soon as ethical questions arise and document, document, document the supervision and every interaction, move or decision that takes place.

Assess the client’s knowledge base regarding HIV, its transmission, treatment and prevention and take action to educate.

Assess the client’s fears regarding disclosure and explore their reasons to not disclose in an open non-judgmental, non-coercive way to determine the barriers that need to be overcome to disclose. Determine their developmental capacity to appreciate the situation and how it fits into other issues that may have brought the client to seek treatment. Empower the client to take responsibility to protect partners that are vulnerable to transmission and understand the consequences of disclosing their status or not.

It may help to work with the client to establish a timeline to notify people, setting a date or that the therapist may have to consult with colleagues about next steps. If they choose not to disclose, let the client know of the ethical pain it causes. Role-play the disclosure. Remind the client of their moral and ethical obligation to protect others and warn them of their vulnerability to HIV infection.

Offer the client the opportunity to make the disclosure in the therapeutic setting; that they can do it with the therapist present to mediate the situation. Offer them the opportunity to use an anonymous disclosure or third party.

In conclusion, the duty to protect is an ethical dilemma between two “goods”: the clients benefit of confidentiality and the third party’s benefit of knowing that they may be infected and must be tested. The difficulty is that the treatment provider can be sued by the client or the third party if the wrong decision is made.

References

Gostin L, Curran WJ. Legal control measures for AIDS: reporting requirements, surveillance, quarantine, and regulation of public meeting places. Am J Public Health. 1987 Feb. 77(2): 214-8.

Gostin L, Curran WJ. AIDS screening, confidentiality, and the duty to warn. Am J Public Health. 1987 Mar, 77(3): 361-5.

Lamb, Douglas H.; Clark, Claudia; Drumheller, Philip; Frizzell, Kathleen; Surrey, Lynn, Applying Tarasoff to AIDS-related psychotherapy issues. Professional Psychology: Research and Practice. Vol 20(1), Feb 1989, 37-43.

Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976).

Walker, G., (1991). In the Midst of Winter: Systemic Therapy with Families, Couples and Individuals with HIV Infection. New York: W.W. Norton and Company

Wood, G., Marks, R., and Dilley, J. (1992) AIDS Law for Mental Health Professionals. Berkeley, Celestial Arts. 1837 Words