I am curious about ethical considerations when treating individuals who are HIV positive. What are my responsibilities as a clinician if I know that my client (HIV positive) is engaging in risky/unsafe sexual practices with someone? In this case, the other person’s life is endangered.

This issue always stumps me, thank you for your thoughts!

Jeff Barnett Responds:

Hi Stephanie. Great question. This is one that often is very confusing and challenging for psychotherapists. One of the major concerns involves the different but related roles of ethics, law, and clinical practice. I believe some of what is behind your question concerns the issue of “duty to warn and protect” that comes from the landmark Tarasoff decisions in 1974 and 1976 (Tarasoff v. Regents of the University of California.

In 1974 in the initial ruling the court opined that “where a psychotherapist had reason, arising out of a professional relationship with a patient, to believe, or reasonably should have believed, that the patient was intending to harm a specific victim, that a duty existed to warn that victim” (Mills, 1984).

In 1976 the court revised and updated its opinion, adding to the obligation to warn the intended victim with the need to take actions to protect the intended victim such as by contacting the police, and possibly by even using treatment to prevent the harm from occurring.

The Tarasoff rulings set legal precedent. But, over the years as states have passed laws to address these issues, the precedent has been codified into law. Yet, various states’ laws are different in their requirements. Some states have duty to warn statutes, some have duty to protect statutes, some have duty to warn and protect statutes, and some include treatment in their statutes. For example, in Maryland , the law is the duty to warn, protect, or treat. That is, if treatment can prevent harm to another person from occurring , it should be used first. Confidentiality should only be breached in these situations when treatment is ineffective or is not possible.

But, it is important to note that the Tarasoff rulings and these various state laws are speaking of a specific threat made in treatment to do harm (typically interpreted as lethal harm) to an identifiable victim or group of victims. This brings up several important points. First, it must be a threat to do harm. This implies that the harm did not already occur. The goal of these laws is to prevent future harm. Second, it must be an identified victim, otherwise who would we warn and who would the police potentially take action against? Third, the harm that is threatened should be lethal. If a client said in session that later that day they are going to punch their spouse, this would not meet the standards needed for breaching confidentiality.

But, if one’s state law allows for this the psychotherapist should always consider treatment as the first option. These laws do not require that the psychotherapist make a call to the intended victim and to the police the moment a client discloses such a threat. We are to conduct a thorough risk assessment, address these issues in the treatment plan, and work to address underlying issues, in an effort to prevent the harm from occurring, and thus, to prevent the need to breech confidentiality.

With regard to the issue of a client with HIV or AIDS disclosing engaging in unprotected sex with other individuals this is of course a very serious concern that will hopefully be addressed in treatment. With regard to breaching confidentiality there are several issues of relevance and great importance. First, it is essential that we always include potential limits to confidentiality in our informed consent agreements with our clients.  Then, the following factors are relevant: intent to do harm, likelihood of actual harm occurring, the inability to know the identity of future sexual partners, and the likely presence of consent to engage in these behaviors (Chenneville, 2000). When it comes to unprotected sexual behavior one might reasonably argue that your client’s partners are engaging in this behavior consensually. To date there has been so much education about sexually transmitted diseases, practicing safe sex, and the like, that this situation can be seen as substantively different than the typical Tarasoff-like situation. Of course, if your client stated in session that he was going to rape a specific individual in the future and to do so without a condom, that might more closely approximate the need for the Tarasoff-like actions described above. But, when considering lethal actions, unprotected sex by an HIV-Positive or AIDS-infected individual is does not possess the lethality of shooting, stabbing, etc. another person. The rate of transmission of HIV from unprotected sex is not even close to 100% and for those who are infected there now exist effective treatments.

Thus, it is important to keep in mind the requirements of your state’s laws. This includes duty to warn, protect, and treat laws as well as those relevant to reporting HIV. Some states do not all the reporting of HIV or AIDS status by licensed psychotherapists (e.g. Wisconsin) while other states require the reporting of it (e.g. Washington). So, knowledge of the relevant laws in one’s jurisdiction is essential. It is also important to keep in mind that breaching confidentiality due to harm to others has strict limitations. The harm must be threats of harm in the future, not in the past or ongoing. Additionally, the harm typically must have potentially imminent lethality (again, check your state laws for their specific wording). Finally, if these issues can effectively be addressed in treatment, that is preventing the risk of future harm through treatment, that should carefully be considered unless your state’s law contraindicates this. When addressing these issues are addressed in treatment it is important to thoroughly document all discussions, recommendations, interventions and actions taken, your client’s responses, and all consultations. Further, it’s not just important to document what you did, but also all that you considered and the rationale behind your decisions.

I hope this is helpful to you. I do not represent myself as an attorney or an expert on every jurisdiction’s laws, and I do not know all the details of your case. But, I do hope this provides some issues for consideration and discussion. Please feel free to share your comments and any additional thoughts. I also welcome other members sharing their thoughts and perspectives on this important and challenging issue.

References

Chenneville, T. (2000). HIV, confidentiality, and duty to protect: A decision-making model. Professional Psychology: Research and Practice, 31(6), 661-670.

Mills, M. (1984). The so-called duty to warn: The psychotherapeutic duty to protect third parties from patients’ violent acts. Behavioral Sciences & The Law, 2(3), 237-257.

I have a client (18yr female) who I have seen twice a week for 8 months who is currently in a relationship plagued with intimate partner violence. This has been dubbed “mutual combat” by several of my co-workers, but in exploration with her, it appears as though the severity of his violence, his physical strength, and his emotional control create a dynamic where she sometimes reacts with violence (i.e., pushing him so she can escape, scratching his arms when they are around her neck). She has asked to begin couples therapy with her partner, and he has agreed. I am familiar with some of the literature on couples therapy and intimate partner violence and have had some training in this area, but no one else at my location (a community mental health center) is trained in couples therapy and/or intimate partner violence. My agency is now discussing the possibility of me seeing them as a couple while continuing to see her. Are there guidelines or best practice recommendations about
whether it would be appropriate for me to see them as a couple?

Response by Jeffrey Barnett

Thanks for this great question. I’m really glad you are asking it. Clearly you are sensitive to the issue of competence with regard to the knowledge and skills needed to provide couples therapy. As your question implies, being competent in individual psychotherapy doesn’t necessarily translate over to clinical work with couples. Once must have the necessary education and training from course work, readings, CE activities, and supervised clinical experience before expanding our practice into a new area. I agree with you that you need to be aware of relevant practice standards and guidelines as well.

The situation you describe is also challenging because of the highly volatile nature of the relationship and the risks present for all involved (including yourself!). It will be important to be sure you have in place safeguards to protect yourself should anyone become aggressive or violent during a session. Having a colleague present or nearby during sessions, having a ‘panic button’ at your desk to quickly summon security if needed, positioning yourself near the door and not having clients seated between you and the door each may be important. Additionally, having a treatment contract/informed consent agreement that clearly specifies rules of conduct for the psychotherapy relationship is important as well. It should specify acceptable and unacceptable behaviors, appropriate alternatives to use if one is angry, and responses or consequences that will occur should certain specified behaviors happen.
With regard to the competence issue and relevant standards I suggest you consult with colleagues who are experts in couples therapy and in clinical work with intimate/partner violence. APA’s Division of Family Psychology and the Family Psychology section of the American Board of Professional Psychology may be good resources. While you may not have a competent supervisor on site, consultation and supervision may be done across distances by use of televideo communications such as Skype or by telephone and by sending the supervisor tapes of sessions with appropriate consent of the clients.

You are wise to be concerned about practicing in a new area without first knowing relevant practice standards, obtaining needed education and training, and receiving ongoing consultation or supervision. Then, should you proceed with this case, be sure your expert colleagues provide suggestions on how to structure the treatment sessions and relationships to ensure the safety of all involved. I hope this is of help. Should you have additional questions or comments please let me know. I also hope others will share their thoughts on this important area of practice as well. Perhaps some colleagues who work with these types of couples can share their perspectives.

Thanks and best wishes – Jeff

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Currently, there is a push for people to be on medication, and clients often come in stating that they want medication. This is especially true in multidisciplinary environments where psychiatrists and APRNs work alongside psychotherapists. However, some people do not have this mindset. For therapists who believe that medication only needs to be used as a last resort or in obvious serious situations, is it ethical to not refer everyone to a med provider, and instead of offering medication right off the bat, to wait and try and achieve success in therapy first, in the hopes that medication will not be needed?

Response By Jeffrey Barnett

This is a great question and one that all psychologists and psychotherapists should carefully consider.  It is true that some mental health patients must have medication included as a part of their treatment. These may include those suffering from Bipolar Disorder, Schizophrenia, and other serious mental illnesses. But, even for these patients, we know that medication alone does not provide the best treatment outcomes. Even for these patients, psychotherapy and psychoeducation are important components of their treatment. Many of these patients struggle with medication compliance for a variety of reasons to include side effects of their medication. We also know that for many mental health patients, even those for whom medication may be of help, that many of them will also benefit from psychotherapy alone or a combination of psychotherapy and medication. Fairly recent data demonstrate that psychotherapy can result in many of the same changes in the brain that medication causes, and without the significant side effect potential or the potential for drug-drug interactions.

It is unfortunate that we live in a time where pharmaceutical companies directly market their products directly to consumers and the health insurance and managed care industries often take a myopic view due to fiscally motivated treatment decisions. Some patients may not be allowed to see a psychotherapist under their insurance plan until they have tried and failed with two or three medications. That’s really tragic, especially with all we know about the effectiveness of psychotherapy.

I believe your question brings up several important ethics issues. The first is informed consent. It is important to share all reasonably available information with your clients to assist them in their decision making. While we shouldn’t overwhelm them with information, it is important to ensure that they understand the reasonably available options and alternatives for their treatment along with their relative risks and benefits. This will then assist them to make more thoughtful and informed treatment decisions. The second important issue is that of competence. If we aren’t sufficiently knowledgeable about psychopharmacology and psychotherapy we can’t provide the relevant information and can’t effectively assist patients to make the most informed decisions possible.  We should also explore with patients their motivations for wanting medication. They may be seeking a quick and easy ‘fix’ for their difficulties. Again, providing them with relevant information will assist them to have realistic expectations of treatment whether psychotherapy alone, medication alone, or a combination of the two. Finally, when our psychotherapy patients are being treated with medication it is important that we address confidentiality and consultation issues with regard to coordinating treatment with their prescribing physician (or other professional). We should ensure that we have appropriate consent from our patients before sharing information with others, but should stress the importance of coordinating care with our patients. We can monitor for side effects, positive effects, and the like. The prescribing professional may only meet with the patient for 15 minutes every 6 months whereas we may meet with the patient for 50 to 60 minutes each week.  For those patients taking medication in addition to our psychotherapy we can play a valuable role in monitoring their functioning and progress.

We can also work to educate prescribing professionals about the short and long term benefits of psychotherapy for a wide range of presenting problems. In the multidisciplinary environment it can be very important to provide inservice training on psychotherapy. You could also provide consultations on patients at intake and explain treatment options then.

There is not obligation to refer all patients to a prescribing professional right away, but this goes back to the points raised about informed consent. One thing you can do is in your practice literature (as well as on your website if you have one) you can describe the services you offer along with your treatment approach and practice philosophy. That may be a good way to let patients and potential patients know how you approach treatment for a range of presenting problems. Then, if they still want to meet with you could go through the informed process as described earlier. But, you should endeavor to provide patients with accurate information, not just personal opinion. Also, it is important to ensure that all patients are medically cleared for treatment and if medical conditions exist that may impact their treatment referral for appropriate medical care is essential (e.g., diabetes, hypertension, etc.).

What you ask about is a true ethics dilemma; that is, there is no clearly correct or incorrect course of action. The best course of action depends on a number of issues and factors as described above. What makes your practices ethical or unethical is the actions you take, the actions you choose not to take, and the rationale for doing so (along with following the dictates of the ethics code and relevant state laws).

I hope this is of help. If you have additional questions or comments please post them here. Thanks for seeking this consultation. I hope others can benefit from reading it and will respond as well.

Best wishes – Jeff

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I have a client referral who is requesting, via an anonymous email message, to be screened by me as a possible patient anonymously. Although he states he is not suicidal or homicidal, nor does he meet any of the criteria for possible involuntary hospitalization (by his own report), he remains extremely concerned about allowing this judgment to be made by someone (e.g. me) other than himself. He wants to talk about his concerns, learn more about treatment, and then “walk away” if that is what he decides. Do I have any ethical or professional considerations to make if I accept his terms?

Response by Dr. Barnett

Hi Chris. This is a very interesting situation. In addition to risk management and ethics issues and concerns, I suggest you also consider your personal comfort with this situation. If you are not comfortable with this arrangement you are under no obligation to participate in it. You may decide that it is not in you or this individual’s best interests to participate in such an arrangement of an anonymous e-mail screening.

I understand that you are describing a screening process to see if the individual might be an appropriate patient for you, or even if treatment is indicated. But, what happens if/when this individual shares about some significant issues, concerns, or risk factors? Your ability to respond appropriately has been severely restricted by the ‘rules’ imposed on you by this individual. While I understand he says he is not suicidal or homicidal, I also know that things are often not as simple as they first seem. I have to wonder why he is seeking treatment (and why he feels compelled to do it in this way!). It certainly doesn’t seem like a good start for a relationship built on trust. Also, if he is “extremely concerned about allowing this judgment to be made by someone… other than himself” then what is your role in the screening process? Are you screening him or is he just seeking information about you and the services you provide? I would also wonder why he couldn’t just walk away if he decided to after an in-person screening in which he shares about who he is and responds to all your questions.

While this may only be a ’screening’ I can see the potential for significant difficulties arising. Even though this is being termed a screening one must ask if you incur a professional obligation to this individual once you begin asking questions about his history, presenting problems, etc. I also wonder how open and honest he will be about all this and as a result, what kind of job you can do with the screening.

When faced with an ethical dilemma where we must decide between two possible courses of action, Choices A or B, I often find that the best course of action is Choice C, some other option (not one of the two initially presented to us). So, I suggest you consider the options and alternatives available to you, decide what your level of comfort is with this arrangement, clarify his goals and expectations and decide if this is something appropriate for you to offer, consider what unanticipated things might occur and if you want to be in that situation, and if proceeding as asked will be in this other individual’s best interest.

You may wish to explain to him why you are not able to participate in the process as he is requesting and explain to him what you are able to offer. While you may never hear from him again, you may also be surprised and find that he agrees to this alternative plan. If you do decide to proceed with this arrangement I suggest being very clear about the parameters of the relationship, what a ’screening’ is and that this does not constitute the establishment of a professional relationship, but that this is intended to help each of you decide if you want to enter a professional relationship.

If you do decide to proceed you should be able to articulate for yourself why you are doing this. Perhaps you sense how scared this person is and that you may be able to do some good for him with how you handle this screening process. But again, it is important to be very clear about what this is and isn’t, what the goals are, what your role is, and what the potential outcomes are. I would also keep in mind the potential risks for you should you participate as he dictates.

I hope this is of help. Good luck with this challenging situation. Jeff

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