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                           AIDS NEWS SERVICE
                      Michael Howe, MSLS, Editor
                        AIDS Information Center
                   VA Medical Center, San Francisco
                        [phone] ext 3305
                           February 3, 1995

                 Safer Sex: Information for Counselors
                              (Part XVII)

FOCUS: A Guide to Research and Counseling
Volume 8, Number 5, April 1993

                 EDITORIAL: HONESTY IS THE BEST POLICY
                         Robert Marks, Editor

      It could be argued that two of the most intimate relationships
--that is, ones that rely most on honesty and trust--are between
sexual partners, and between psychotherapist and client. These
relationships are at the center of the conflict posed by the legal
duty to protect. And it is the quality of intimacy--again, honesty
and trust--that underlies this conflict.
      In the therapeutic relationship, honesty and trust enable
clients to share their deepest feelings and, in doing so, change
the way they view the world and interact with others. Clients are
able to brave such vulnerability because law and custom protect the
privacy of the therapeutic bond.
      While the law also protects privacy in marriage, married and
unmarried partners alike are often less committed to honesty and
trust than the ideal of the romantic relationship would have us
believe. If all sexual relationships were, in fact, based on
honesty and trust, there would be no need to invoke the duty to
protect and threaten the integrity of therapeutic relationships.
      In response to this situation, Tarasoff and its progeny
require the licensed therapist to mediate the therapeutic
relationship by playing the role of a double agent--ostensibly
loyal to the client's needs, but secretly prepared to sacrifice
this loyalty when the client crosses a poorly defined line.
      When a client claims the intent to murder a "third party," the
duty to protect helps provide standards by which to balance the
moral duty to protect life and the professional duty to protect the
therapeutic relationship. But, the criteria used to define the duty
to protect--imminent action, identifiability of a victim, and
degree of dangerousness--are not easily applied in the hidden and
unpredictable world of HIV transmission.
      In this month's FOCUS, Craig Georgianna and Michael Johnston
present data from an original study that confirms the significant
place of confidentiality in the minds of potential clients.  Peter
Daniolos outlines the attempts of professional associations to
reconcile the duty to protect third parties and the duty to protect
the therapeutic relationship.
      Two points can be drawn from these articles. First, subjects
in a study have the luxury of advocating for absolute
confidentiality in the abstract; therapists who face this issue,
however, must struggle with real people, frightening situations,
and equally unsatisfying alternatives. Ultimately, they must make
the decision to warn in the context of law, science, custom, and
conscience.
      Second, before threatening the therapeutic relationship,
practitioners need to work with clients to develop honesty and
trust in relationships. Practitioners might also work in their
communities to help schools develop sex education that goes beyond
the birds and the bees, to teach students to talk about sex,
disease, fear, and ethical responsibility. In the age of sexually
transmitted diseases, consenting adults have the responsibility to
protect themselves, and fostering honesty may be the safest sex of
all.

              DUTY TO PROTECT: THE GAY COMMUNITY RESPONSE
           Craig Georgianna, MA and Michael W. Johnston, EdD

      Respecting the confidentiality of information obtained from
clients is a primary obligation of counselors. The maintenance of
a confidential relationship--one that respects the privacy and
integrity of the client--clearly enhances the psychotherapeutic
process. In some states, such confidential communications have the
statutory status of "privileged communication," protecting the
client's right to refuse to disclose and to prevent anyone else
from disclosing a confidential communication between the client and
counselor. The principles of confidentiality, however, can conflict
with the counselor's duty to protect, which arises when clients
pose a threat to others and when counselors become aware of this
fact.
      The duty to protect has recently begun to encompass the
HIV-related threat sexual partners may pose to one another. While
several studies have reported on the views of practitioners
regarding the duty to protect, this article describes the first to
poll the potential client population--a largely gay, lesbian,
bisexual sample in Los Angeles--about the HIV-related duty to
protect.

The Duty to Protect

      Standards limiting privileged communication have grown from
the 1976 California case Tarasoff v. Regents of the University of
California. Adopted since by many other states, they can be
articulated generally as: if a psychotherapist has reasonable cause
to believe that a client is imminently dangerous to a specifically
identified person and that disclosure of privileged communication
is necessary to prevent the threatened danger, these states allow
disclosure of that communication.
      Is the risk of HIV infection a circumstance in which
confidentiality can be broken because a seropositive client is
placing a third party in clear danger of HIV transmission? Some
states have broadened the Tarasoff standard by enacting legislation
that allows physicians, under certain conditions, to disclose the
seropositive status of a patient to the spouse of that patient. For
counselors, however, there are no legal directives regarding
confidentiality and the protection of third parties from HIV
infection.
      Using the concepts described by Tarasoff, counselors can
derive the following standards regarding HIV-related disclosure.[1]
A provider must assess the "dangerousness" of the client: Tarasoff
requires that the client present a serious danger of violence, and
danger may be mitigated by the fact that HIV is not transmitted
equally as well through all routes of transmission and that
transmission can be prevented in a variety of ways. Dangerousness
is further mitigated by the fact that with the exception of rape
and sexual molestation, sexual partners have control over the type
of sexual activity in which they will engage and, in the age of
AIDS, are expected to be aware of the dangers of unprotected sex.
The issue is complicated if the client and his or her partner
assume they are in an exclusive sexual relationship when, in fact,
they are not. In such a case, the client's partner may have already
been exposed to HIV.

Literature Review

      The professional literature identifies several ethical and
legal issues related to HIV infection and confidentiality. Samuel
Knapp cites medical diagnosis, participation in high-risk behavior,
and adherence to safe sex techniques as useful factors for
practitioners to consider when assessing the dangerousness of
clients.[2] He proposes guidelines for determining the level of
risk of an incident of HIV transmission, and concludes that the
best  protection occurs when both partners know the risks and the
more vulnerable partner makes a responsible decision to protect him
or herself. Frederic Reamer states that the maintenance of
confidentiality is central to HIV prevention because HIV-infected
people will be deterred from entering counseling if they believe
their privacy will be threatened, and he suggests that in most
cases, disclosure without the permission of the client is not
necessary.[3]
      About half the articles conclude that it is the ethical
responsibility of counselors to warn others of foreseeable harm
related to HIV transmission. The other half consider the client's
right to privacy to be paramount. Samuel Perry states that Tarasoff
is not directly applicable to most HIV-infected clients because the
majority do not have homicidal wishes nor do they have intended
victims.[4] Douglas Lamb and associates indicate that the
obligation to protect can be accomplished in a variety of ways
beyond warning the intended victim or notifying a law enforcement
agency. For example, practitioners can take actions to isolate or
hospitalize dangerous clients.[5] As long as a client actively
participates in therapy, the counselor can maintain
confidentiality.
      While counseling during HIV antibody testing is different from
psychotherapy, studies comparing client response to confidential
versus anonymous testing offer an indication about how clients
might feel about the therapist's duty to protect. These studies
conclude that anonymity encourages screening participation and that
a significant proportion of respondents would avoid HIV antibody
testing if it were not anonymous.[6]  The available research
appears to be split between advising counselors to breach
confidentiality and to hold it as paramount; the antibody test site
studies imply that potential clients may consider confidentiality
as essential.

Method

      In 1992, researchers surveyed gay men and lesbians in Los
Angeles to determine the opinion of the gay community about whether
a psychotherapist should breach confidentiality in order to protect
a third party from exposure to HIV. Participants were presented
with written vignettes placing them in the roles of mental health
counselor, physician, and minister. They were asked what action
they would take if faced with each situation. In addition, they
were asked what actions should be taken by professionals in similar
situations. Survey workers distributed written questionnaires at
meetings of two religious and two political organizations in the
Los Angeles, and at the city's annual gay pride festival.
Participants completed the survey in approximately 15 minutes.
      Placing participants in the role of mental health
practitioner, the survey asked whether they would reveal to the
sexual partner of a seropositive client the fact that the client
was HIV-infected, if the client refused to inform the partner. The
survey also asked how a "real" counselor should respond to this
situation. Other questions asked participants their opinions about
legislation that requires counselors to take specific actions when
faced with seropositive clients who engage in risky sexual
behaviors. A total of 520 participants were surveyed; 498 surveys
were completed fully and analyzed. Over one half of the respondents
identified themselves as gay (58 percent) and 22 percent identified
themselves as lesbian. Eight percent of the participants reported
that they were bisexual (63 percent males and 37 percent females)
and 11 percent heterosexual (23 percent males and 77 percent
females). Eleven percent of all subjects were HIV-infected and 7
percent did not know whether or not they were infected.
      Sixty-five percent of the participants were male. The mean age
of respondents was 32 years. Respondents were highly educated, with
52 percent having a college degree and 19 percent having some kind
of professional degree. Fifty-four percent of respondents had been
in counseling at some time in their lives, while 18 percent were
currently in counseling.

Results

      The study revealed that 80 percent of respondents, when placed
in the role of psychotherapist, would not inform third parties
about the HIV infection of their clients. In addition, 76 percent
stated that an actual counselor in a similar situation should not
disclose the serostatus of the client. Participants who were male,
age 35 and older, better educated, and knew more people who were
HIV infected were significantly less likely to believe that
disclosure was appropriate. Whether a respondent had ever received
counseling was not a significant factor in deciding whether to
disclose serostatus to a third party.
      Sixty percent of participants would sue counselors who
disclosed their HIV infection status to their sexual partners.
Fifty-nine percent believed that it is not necessary to have laws
that direct counselors when to disclose client serostatus, and 75
percent stated that it is not necessary to have a law requiring
therapists to disclose a client's HIV infection to a client's
sexual partners. Fifty-eight percent said that counselors should
not have a choice as to whether or not to disclose a client's HIV
infection. Fifty-nine percent would not support a law that would
require seropositive clients to inform their sexual partners.
      Respondents who were age 35 and older were less likely to want
a law directing counselors when to disclose or a law requiring
counselors to disclose. This group was also significantly less
likely to want a law requiring HIV-infected individuals to disclose
serostatus to sexual partners. Male subjects were significantly
less likely to want any of the three proposed laws. Participants
who had received mental health counseling did not respond
significantly differently from other participants regarding these
legal implications.
      Seropositive respondents were significantly more likely to
state that they would sue a therapist and significantly less likely
to want a law requiring a seropositive client to disclose to sexual
partners. Finally, gay male participants were less likely to want
laws guiding counselors about when to disclose or requiring
counselors to disclose.
      These results clearly indicate the reluctance of those
surveyed to support any laws directing or requiring counselors to
disclose, requiring the seropositive individual to disclose, or
giving the counselor a choice of disclosure. These findings differ
significantly from the published opinions of many mental health
professionals.

Limitations

      The methodology of this study limits the generalization of the
findings to people who do not attend public events, to people in
non-urban areas, and to people in other geographic regions of the
United States and in other countries. In addition, the study fails
to identify the racial and ethnic background for participants and
to analyze differences among these subgroups.
      The survey did not ask participants to identify the HIV
infection status of their current romantic-sexual partner, nor did
it ask, "If your romantic-sexual partner were seropositive and
engaging in risky sexual behavior with you, would you want to be
notified by your partner's counselor?" It also failed to define the
term "partner," so that some respondents may have interpreted the
word to mean anything from anonymous sexual partner to life
partner.
      The mind-set of the participants may also have affected their
responses. The surveys were completed in a public setting and,
thus, may have been completed too quickly. However, the respondents
indicated the strength of their beliefs for each decision on a
numerical scale, and statistical analysis indicated a strong
conviction for answers to each of the hypothetical decisions.
      Finally, and most significantly, the vignettes provided
limited information regarding the ethical and legal considerations
faced by counselors. The survey did not include more detailed
vignettes in order to avoid biasing responses although it might
have been useful for researchers to provide more information about
the range of issues counselors face.

Conclusion

      Limitations aside, this study clearly suggests that the gay
community--particularly men and people over 35 years old-resists
counselor disclosure of client serostatus to third parties and
supports maintaining the confidentiality of the therapeutic
relationship. It may be that respondents are sensitive to the
effects of HIV-related or homophobic discrimination, that they
understand the anxiety related to facing HIV disease, that they
believe that breaching confidentiality will interfere with the
helping process, or that they believe that the counseling process
can itself limit destructive HIV-related behaviors.
      All three parties in the duty to protect scenario bring
similar beliefs and struggles to the counseling process. The
uninformed, uninfected person struggles with the responsibility for
self and with trust in his or her partner. The sexually active,
HIV-infected client struggles with maintaining personal integrity
and congruence between personal values and actual behavior, and may
face intrapsychic and interpersonal conflicts, fear and despair.
The counselor struggles with the obligation to protect third
parties and to protect the therapeutic process by respecting the
autonomy, dignity, and privacy of clients. The struggles cannot be
eliminated, but it may be useful for counselors to address these
different perspectives by discussing the potential duty to protect
early in the therapeutic relationship and, with a "dangerous
client," employing clinical options before legal ones: as long as
a client actively participates in therapy, the counselor can
maintain confidentiality.

References

1. Wood GJ, Marks R, & Dilley JW. AIDS Law for Mental Health
Professionals. San Francisco: UCSF AIDS Health Project, 1990.

2. Knapp S, VandeCreek L. Application of the duty to protect to
HIV-positive patients. Professional Psychology: Research and
Practice. 1990;21(3):161-166.

3. Reamer FG. AIDS, social work and the "duty to protect." Social
Work. 1991; 36(1): 56-59.

4. Perry S. Warning third parties of risk of AIDS: APA's policy is
barrier to treatment. Journal of Hospital and Community Psychiatry.
1988:40(2): 158-161.

5. Lamb DH, Clark C, Drumheller P, et al. Applying Tarasoff to
AIDS-related psychotherapy issues. Professional Psychology:
Research and Practice. 1989; 20(1): 3 7-4 3.

6. Kegeles SM, Catania JA, Coates TJ. et al. Many people who seek
anonymous HIV antibody testing would avoid it under other
circumstances. AIDS. 1990; 4(6):585.

Authors

Craig Georgianna, MA is a counseling intern at Project Info
Community Services in Whittier, California, and works with
high-risk adolescents and their families. He is also in private
practice and is preparing to enter a doctoral program in clinical
psychology.

      Michael W. Johnston, EdD is a counseling psychologist in the
University Counseling Center, and adjunct assistant professor of
Educational Psychology at California State University, Long Beach.
He has provided HIV counseling, community education, and staff
training since 1986 and is a volunteer counselor at the Pacific
Center in Los Angeles.

          HOW PROFESSIONAL ASSOCIATIONS VIEW CONFIDENTIALITY
                          Peter Daniolos, MD

      Since the 1973 Tarasoff decision, therapists have had to
balance traditional obligations to protect client confidentiality
and newer demands to protect third parties who may be harmed by
clients. The sexual transmission of HIV complicates this already
difficult situation by transforming common and pleasurable acts
into potentially dangerous ones. Since laws covering HIV-related
confidentiality vary from state to state and often overlook ethical
considerations, practitioners have the additional task of
reconciling law and conscience. This article presents a survey of
professional association guidelines, which serve to guide
association members in thinking about these issues, and describes
some of the principles that guide policy makers.

Policy Statements

      The AMA Council on Ethical and Judicial Affairs states that
"Physicians have a responsibility to prevent the spread of
contagious diseases, as well as an ethical obligation to recognize
the rights to privacy and to confidentiality of the AIDS
victim.:[1]  It continues: "Where there is no statute that mandates
or prohibits the reporting of seropositive individuals to public
health authorities...the physician should 1) attempt to persuade
the infected patient to cease endangering the third party; 2) if
persuasion fails, notify authorities; and 3) if the authorities
take no action, notify the endangered third party."
      The American Psychiatric Association AIDS Policy on
Confidentiality and Disclosure also recognizes rights to privacy
and confidentiality.[2]  However, "If the physician has reason to
suspect the patient is infected with HIV...or is engaging in
behavior that is known to transmit HIV disease, the physician
should notify the patient of the specific limits of
confidentiality." That is, if a client refuses to change his or her
behavior or notify his or her partner, "It is ethically permissible
for the physician to notify an identifiable person who the
physician believes is in danger of contracting the virus."
      According to the American Psychological Association's
AIDS-Related Policy Statements: "1. A legal duty to protect third
parties from HIV infection should not be imposed, 2...disclosure
[is permitted] only when (a) the provider knows of an identifiable
third party who the provider has compelling reason to believe is
at significant risk for infection; (b) the provider has a
reasonable belief that the third party has no reason to suspect
that he or she is at risk: and (c) the client/patient has been
urged to inform the third party and has either refused or is
considered unreliable in his/her willingness to notify the third
party."[3]  These guidelines go a step further than the others by
stating that "If...legislation is adopted, it should include
immunity from civil and criminal liability for providers who, in
good faith, make decisions to disclose or not to disclose
information about HIV infection to third parties."
      The National Association of Social Workers echoes the other
association guidelines. It adds that social workers have a
responsibility to consult with other practitioners and to consider
legal counsel if they feel they have a duty to warn.[4]
      Each of these guidelines respects the importance of
confidentiality, but, notably, as the survey of policies moves from
medical to mental health professionals, there is a trend to grant
more leeway to practitioners. The AMA guidelines, state that
physicians "should" warn, while the other policies permit but do
not require warning.

Civil Liberties versus Public Health

      Association policies reflect the conflict inherent in
HIV-related confidentiality-the tension between civil liberties and
public health. Kevin Kelly identifies three principles that should
guide policy makers in negotiating this conflict.[5] First, the
principle of "clear and preventable  harm" dictates that individual
rights take precedent over state interests except in situations
where it is clear that harm will come to society. Second, the
principle of the "least restrictive alternative" argues that if
the state must intervene to protect public health, the intervention
chosen should be the one that infringes least on individual rights.
Third, in order to determine the least restrictive alternative
policies must be based on the unique biological features of a
disease. For example, it may be effective to impose quarantine for
diseases with short courses, but it would be mistaken to assume
that individuals with a chronic, life-threatening illness, such as
HIV disease, would respond to this tactic.
      In the case of the third-party notification, association
policies acknowledge the potential danger of HIV transmission to
harm society, but they rank measures to prevent this harm from
least restrictive to most restrictive. For example, they require
that practitioners first attempt to get clients to change their
behaviors or to warn their partners themselves. This latitude is
justified in terms of the unique biological features of HIV
disease. That is, HIV infection--unlike more easily transmitted
infections--is spread through consensual and intimate acts, with
partners able to take some responsibility for protecting
themselves.
      Recent studies suggest that safeguarding civil rights makes
it more likely that clients will cooperate with partner
notification efforts and seek health assistance. Passing
antidiscrimination initiatives decriminalizing homosexual acts, and
implementing anonymous testing to maximize accessibility all make
it more likely that people with HIV disease will seek HIV-related
counseling, testing, and treatment.[5,6]
      Marcia Angell suggests that by promoting political and social
measures, government can free the public health sector to address
the epidemic as they have other diseases, using systematic contact
tracing and partner notification.[7]  In addition, Ronald Bayer
notes that resistance to partner notification has lessened as
therapeutic options have become available and as patient comfort
has increased with the process of notification.[8]

Conclusion

      To institutionalize these policy initiatives, Lawrence Gostin
recommends the adoption of uniform federal guidelines using as a
model the New York Testing and Confidentiality Act of 1988, which
requires informed consent for testing, test counseling, and strong
protection of confidentiality.[9]  Practitioners have a power, as
opposed to a legal duty, to notify sexual or needle-sharing
partners, and they are shielded from legal liability whether or not
they issue a warning. Such a policy enhances public health efforts
by strengthening the treatment bond, and leaves the ultimate
decision regarding warning to providers.

References

1. Council on Ethical & Judicial Affairs. Ethical issues included
in the growing AIDS crisis. Journal of the American Medical
Association. 1988;259:1360-1361.

2. Ad Hoc Committee on AIDS Policy. Confidentiality and Disclosure.
American Journal of Psychiatry. 1988;145: 541.

3. American Psychological Association. American Psychological
Association AIDS-Related Policy Statements. Washington, DC:
American Psychological Association, 1991.

4. NASW Delegate Assembly. Social Work Speaks: NASW Policy
Statements (2d ed.). Silver Spring, MD: NASW Press, 1991: 4-8.

5. Kelly K. AIDS and ethics: An overview. General Hospital
Psychiatry. 1987; 9(5 331 -340.

6. Walters L. Ethical issues in the prevention and treatment of HIV
infection and AIDS. Science 1988; 239(4840):597-603.

7. Angell M. A dual approach to the AIDS epidemic. New England
Journal of Medicine. 1991;324(21):1498-1500.

8. Bayer R. Public health policy and the AIDS epidemic--An end to
HIV exceptionalism? New England Journal of Medicine. 1991;324(21):
1500-1504.

9. Gostin LO. Public health strategies for confronting AIDS:
Legislative and regulatory policy in the U.S. Journal of the
American Medical Association. 1989; 261(11): 1621-1630.

Authors

      Peter Daniolos, MD is a fourth-year psychiatry resident at
Duke University Medical Center.

                            RECENT REPORTS

Applying of Tarasoff to AIDS Psychotherapy

Totten G, Lamb DH, Reeder GD. Tarasoff and confidentiality in
AIDS-related psychotherapy. Professional Psychology: Research and
Practice. 1990; 21(3): 155-160. (Ohio University and Illinois State
University.)

      Psychotherapists working with HIV-infected clients considered
degree of dangerousness to be more important than identifiability
of victims when making decisions to warn third parties, according
to a survey of clinical psychologists. Tarasoff v. Regents of
California and laws derived from it require that practitioners
consider dangerousness of the act, identifiability of victims, and
imminence of the danger in deciding to breach confidentiality.
      Researchers surveyed 241 psychotherapists, of whom 67 percent
were male, 56 percent were between 40 and 59 years of age, and 57
percent were in private practice. The most common degree held (93
percent) was the doctorate. Clinicians assessed on a seven-point
scale the likelihood of their breaching confidentiality in
hypothetical scenarios about gay men, bisexuals, prostitutes, and
injection drug users.
      In all cases, degree of dangerousness was directly associated
with whether subjects would breach confidentiality, and this result
was statistically significant; the breaching was more likely to
occur if hypothetical clients were sex workers or gay men.
Identifiability became an influential factor in determining that
subjects would breach confidentiality only when there was also a
high degree of dangerousness associated with the situation.
Subjects identified ethical and legal concerns, sexual practices,
injection drug use and needle sharing, psychological diagnosis,
alternate methods of breaching confidentiality, and effects on the
therapeutic relationship as other factors that affect decisions to
breach confidentiality.
      Therapists who had no experience working with HIV-affected
clients were significantly more likely to breach confidentiality
than those who had experience working with these clients. The
researchers conclude that this finding may indicate that
experienced clinicians have developed other ways to handle the
potential risk to partners posed by HIV-infected people.


Contact Tracing and Duty To Warn

Bayer R, Toomey KE. HIV prevention and the two faces of partner
notification. American Journal of Public Health. 1992;
82(8):1158-1164. (Columbia University and Centers for Disease
Control.)

      The duty to warn and contact tracing are two different
approaches to partner notification, the process of informing third
parties that they may be at risk for contracting HIV infection from
a sexual partner. A description of the history, evolution, and
political ramifications of these methods clarifies the
contributions of each to the control of HIV infection.
      Contact tracing evolved from public health efforts in the
1940s to control sexually transmitted diseases (STD) and was the
cornerstone of programs to eradicate syphilis, gonorrhea, and
chlamydia. Its characteristics were voluntary participation by the
"index" patient (that is, the infected patient) who identified
partners who would then be contacted by public health officials and
informed of their potential STD infection. In return for voluntary
participation, index patients were guaranteed absolute anonymity.
Duty to warn developed out of the ethical and professional
principles of clinical practice. Following Tarasoff, the 19~4
California decision, health professionals were required to breach
the confidential practitioner-patient relationship when their
patients threatened third parties with serious harm. Several
professional organizations, including the American Medical
Association, subsequently propounded policies in support of duty
to warn in certain circumstances.
      AIDS activists among others maintain that both contact tracing
and duty to warn compromise individual rights to privacy. They
drive people with HIV infection away from medical care because they
fear HIV and gay-related discrimination that may follow from public
disclosure of serostatus. Opponents also raised questions about the
effectiveness and costs of informing at-risk third parties.
      In 1988, public health officials issued the Guide to Public
Health Practice: HIV Partner Notification Strategies. It was a
compromise that endorsed the privilege, not the requirement of
practitioners to disclose, and supported anonymity for index
patients. Many state legislatures subsequently rejected mandatory
notification laws. Current public policy reflects elements of the
two approaches by recognizing the right of unsuspecting third
parties to protection, the clinician's duty to inform, and the
patient's right to privacy.


Social Work and Duty to Warn

Reamer FG. AIDS, social work, and the "duty to protect." Social
Work. 1991; 36(1): 57-60. (Rhode Island College.)

      Whether or not the Tarasoff duty to warn is applicable to HIV
disease, social workers can infer that they have a requirement to
breach confidentiality when danger is imminent, according to a
discussion of social work and the duty to protect. This requirement
can be deduced from mandatory reporting laws for child and elder
abuse and from the National Association of Social Workers' Code of
Ethics. To make the decision to breach confidentiality less arduous
and to keep such breaches at a minimum, social workers must build
upon the client-worker relationship to get HIV-infected clients to
voluntarily reveal serostatus to partners. Social workers can also
take other steps including: becoming familiar with local laws and
statutes pertaining to AIDS; informing clients orally and in
writing about the limits of confidentiality; becoming knowledgeable
about guidelines concerning informed consent; maintaining carefully
prepared case notes and knowing whether local laws distinguish
between public notes and private notes in terms of whether they may
be subject to subpoena; and becoming aware of the liability risks
involved in HIV-related cases. In addition, they should publicly
advocate to counter some of the potential developments associated
with an across-the-board application of Tarasoff to HIV disease.


Clinical Practice and Liability Protection

Knapp S, VandeCreek L. Application of the duty to protect to
HIV-positive patients. Professional Psychology: Research and
Practice. 1990; 21(3): 161-166. (Pennsylvania Psychological
Association and Indiana University of Pennsylvania.)

      A discussion of the duty to warn, AIDS, and psychotherapy
concludes that to best protect third parties from HIV infection,
counselors should seek to maintain a therapeutic relationship based
on trust and open communication, and should be knowledgeable about
legal and ethical codes.
      When working with clients who engage in high-risk behaviors
and refuse to voluntarily disclose their serostatus to partners,
therapists must assess the level of risk clients pose to others,
since warning third parties is required only if harm is imminent
and of sufficient dangerousness. Determining level of dangerousness
is often a subjective judgment about the patient's credibility,
their social concern for sexual partners, and other factors.
      When talking to clients, therapists should openly express
their concerns for those who might be harmed by client actions. If
a therapist decides to invoke the duty to protect, he or she should
obtain the client's permission or encourage the client to be
present. The therapist and client can consider using public health
department partner notification systems, if they decide not to
notify the third party directly. After partners are warned, they
must receive additional HIV-related information and counseling.

      Several states have enacted statutes that provide liability
protection for physicians and surgeons who make good-faith
warnings, pursuant to the duty to protect. For example, in
California, physicians may but are not required to disclose. In
doing so, they must first discuss infection status with their
clients and encourage them to voluntarily disclose. When invoking
the duty to protect, doctors may not reveal the identity of their
clients. Psychotherapists would benefit from such laws.

                   ADDITIONAL READING - DUTY TO WARN

Boyd KM. HIV infection and AIDS: The ethics of medical
confidentiality. Journal of Medical Ethics. 1992;18(4):173-179.

Cohen ED. Confidentiality, counseling, and clients who have AIDS:
Ethical foundations of a model rule. Journal of Counseling and
Development. 1990; 68(3):282-286.

Dunbar S, Rehm S. On visibility: AIDS, deception by patients, and
the responsibility of the doctor. Journal of Medical Ethics. 1992;
18(4):180-185.

Erickson SH. Counseling the irresponsible AIDS client: Guidelines
for decision making. Journal of Counseling and Development. 1990;
68(4):454-455.

Fleck L, Angell M. Please don't tell! Hastings Center Report. 1991;
21(6):39-40.

Fruman LS. AIDS and the physician's duty to warn (part 1). Medicine
and Law. 1991; 10(5):416-443.

Fruman LS. AIDS and the physician's duty to warn (part 2). Medicine
and Law. 1991; 10(6):515-526.

Gray LA, Harding AK. Confidentiality limits with clients who have
the AIDS virus. Journal of Counseling and Development. 1988;66:
219-223.

Kermani EJ, Weiss BA. AIDS and confidentiality: Legal concept and
its application in psychotherapy. American Journal of Psycho-
therapy. 1989; 43(1):25-31.

Krajeski JP. Legal, ethical, and public policy issues. New
Directions for Mental Health Services. 1990; 48:97-106.

Majer LS. HIV-infected students in school: Who really "needs to
know?" Journal of School Health. 1992;62(6):243-245.

Morrison DF. AIDS: Ethical implications for psychological
intervention. Professional Psychology: Research and Practice. 1989;
20(3):166-171.

Onel S, Fry-Revere S. Legal trends in bioethics. Journal of
Clinical Ethics. 1992;3(3):242-246.

Zonana H. Warning third parties at risk of AIDS: APA's policy is
a reasonable approach. Hospital and Community Psychiatry.
1989;40(2):162-164.

**********

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