警告的义务是指辅导员有义务警告可识别的受害者。保护责任是辅导员有义务在辅导员有理由相信可能受到损害的情况下揭示机密客户信息的责任。对辅导员警告义务的理解始于承认机密性的道德责任与特权交流的法律条款之间的差异。保密性是辅导员向客户授予的尊重的演示,其中两者之间的信息不会被辅导员泄露。特权沟通是一种法律学说(也称为治疗师患者特权),宣布客户局治疗通信将由辅导员私下。客户而不是辅导员拥有此法律特权,通常只有客户才有权从关系中发布信息。特权交流并非所有州都可用,也不是绝对的。例如,当客户威胁要伤害他或她自己或他人时,存在一个例外。美国心理协会和美国咨询协会的道德守则认可例外,并注意到,当客户构成威胁或风险时,辅导员不需要保持机密性。
The legal precedent for establishing a duty to warn and a duty to protect was set in the wrongful death case of Tarasoff v. Regents of the University of California. Tatiana Tarasoff was murdered by Prosenjit Poddar, a student from India enrolled at the University of California. Upon the rejection of Ms. Tarasoff’s affection, Mr. Poddar became distraught and sought counseling at the university student counseling center. During therapy, the psychologist working with Mr. Poddar became concerned that Mr. Poddar intended to harm Ms. Tarasoff. The psychologist, along with a psychiatrist, unsuccessfully attempted to have Mr. Poddar committed. The psychologist also advised the campus police of his concerns. The campus police questioned Mr. Poddar, but he assured them he would not harm Ms. Tarasoff and he was subsequently released. Mr. Poddar terminated therapy and eventually went to Ms. Tarasoff’s home, shot her with a pellet gun as she ran from the house, and ultimately killed her with a kitchen knife.
塔拉索夫(Tarasoff)女士的父母对大学提起了不法死亡诉讼,以及心理学家和精神科医生,因为他们疏忽警告塔拉索夫女士(Tarasoff)女士,波达尔先生造成的迫在眉睫的危险。被告在下级法院赢得了胜利,但该案已上诉,最初的裁决被推翻了。加利福尼亚最高法院在1974年驳斥下级法院时,发布了一项裁决,该裁决确立了治疗师警告潜在的第三方受害者的义务。此外,加利福尼亚最高法院扩大了治疗师的责任,要求采取必要的合理措施来保护预期的受害者,从而在1976年的塔拉索夫案中重新听取保护。法院裁定,对公众的危险将治疗关系的保护特权推广。
The duty to warn and protect has been upheld in other states and has become the standard of practice for mental health professionals. The duty to protect continues, however, to be open for interpretation throughout the United States. In deciding whether duty to protect is present under the law, judges generally consider whether (a) there was a special relationship and the client communicated an intended threat directly to the therapist, (b) harmful action (such as severe injury, death, or psychological harm) was foreseeable and imminent, and (c) the victim was identifiable. Different interpretations in various jurisdictions can result in apparent inconsistencies. Although many cases have issued rulings consistent with Tarasoff, others have resulted in rulings that allow a cause of action to a “foreseeable” victim who may or may not have been identifiable by a therapist.
Application in the Context of Other Therapeutic Issues
The duty to warn and protect may arise in contexts other than threat of injury or homicide of identifiable victims. Counselors should be mindful of obligations to warn and protect against clients’ threats of danger to identifiable or foreseeable victims of (a) HIV/AIDS, (b) child abuse or neglect, (c) incest, and (d) battery. There are also reporting considerations regarding self-injury and abortion.
Mental health professionals performing an evaluation and developing a treatment plan may be at risk for malpractice litigation when reasonable care is not exercised to prevent harm to a third party. If, in the course of developing a diagnosis or treatment plan, a counselor becomes aware of a client’s physical threats to a third party, the counselor might have a duty to protect others from potential harm. An incorrect diagnosis would fall under this same guideline. For instance, if a client did not receive appropriate treatment because of an incorrect diagnosis, the client might follow through with hostile and harmful behavior. The condition of the special relationship associated with duty to protect seems to apply in both instances.
Guidelines
没有一个简单的公式来确定何时会出现警告和保护义务的义务,因为每种案件都是不同的,并且法规之间有所不同。通常,辅导员应(a)以敏感性来处理潜在危险的客户,(b)在治疗干预措施中遵守细节和护理标准,以及(c)应用程序来评估危险性和记录保存。此外,应审查过去的记录,以评估客户对暴力行为的历史和倾向,以及任何其他信息,这些信息会引起合理的信念,即客户会伤害第三方。务实的辅导员应获得专业责任保险。
治疗考虑因素
Additionally, there are considerable therapeutic considerations associated with duty to warn and protect. A primary concern is client well-being. If the client turns out not to be dangerous and the counselor was insensitive in forming an assessment, the client may lose the opportunity for therapeutic intervention for long-term progress. A second therapeutic consideration is client autonomy. For example, encouraging clients to develop coping skills such as anger management could potentially serve to facilitate client self-growth and ultimately decrease the client’s risk to society. A counselor has the therapeutic opportunity as well as the obligation to model socially-responsible behavior for a client who might threaten harm to others, even in a joking manner. Counselors should inform the client of the consequences of the client’s intent and the necessity of the counselor to protect others.
遵循步骤
以下准则旨在帮助辅导员在遵守法律义务的同时以道德对待“潜在的危险”客户:
- 在机密性限制的关系开始和期间向客户通知客户,并将这些限制包括在辅导员和客户签署的知情同意文件中。
- Formulate and enact steps to assess dangerousness, such as determining if the potential danger is imminent and whether a threat is to an identifiable or foreseeable victim. At a minimum, dangerousness assessment should include a history of violence (the most predictive factor), evaluation of current thoughts, and aggressive behaviors. Other risk factors include a lack of social support, mental incapacity, an organized or feasible plan for violence, and a history of substance abuse. Recognize that it is very difficult to assess homicidal intent.
- If the counselor determines imminent dangerousness, the next step is to notify the intended victim and required professionals (such as police or other authorities, Department of Health and Human Services, and 911 or any other emergency services), the necessity for whom is indicated by the case and/or the counselor’s professional judgment. If possible, the counselor should decide in consultation with another qualified mental health professional precisely who should be consulted to help prevent victimization.
- Therapeutically related identified steps for counselors to protect the public include (a) increasing both the number of therapy sessions and amount of telephone contact with the client, (b) referring the client for a medical evaluation, (c) teaching anger management skills or arranging for those to be taught in individual or group settings, (d) arranging for commitment to a hospital, and (e) developing a “no-harm” contract for the client and having the client sign the contract. These steps may vary in sequence and content, depending on the circumstance of the case.
- Document (a) the justification of the decision to disclose confidential client information; (b) consultations with any necessary professionals such as psychiatrists, attorneys, law enforcement officials; and (c) any actions taken.
- Track recommendations to be certain they were followed.
辅导员有义务警告潜在的第三方受害者的义务通常会缓和客户的机密性。随着各州之间的判例法不同,辅导员必须研究并遵循他们执业的州或州不断发展的法律。
References:
- American Counseling Association. (2005). ACA code of ethics [Online]. Available fromhttps://www.counseling.org/resources/aca-code-of-ethics.pdf
- American Psychological Association. (2002). Ethical Principles of Psychologists and Code of Conduct. American Psychologist, 57, 1060-1073.
- DiMarco, M., & Zoline, S. S. (2004). Duty to warn in the context of HIV/AIDS-related psychotherapy: Decision making among psychologists. Counseling and Counseling Psychology Journal, 1(2), 68-85.
- Fischer, L., & Sorenson, G. P. (1985). School law for counselors, psychologists, and social workers. New York: Longman.
- Herlihy, B., & Sheeley, V. L. (1988). Counselor liability and the duty to warn: Selected cases, statutory trends, and implications for practice. Counselor Education and Supervision, 27(3), 203-215.
- Simon,R。(2001)。精神病学与法律。华盛顿特区:美国精神病出版社。
- Stanard,R。和Hazier,R。(1995)。艾滋病毒的法律和道德意义以及警告辅导员的义务:塔拉索夫是否适用?咨询与发展杂志,73(4),397-100。
- Tarasoff v. Regents of the University of California, 118 Cal. Rptr. 129, 529 P.2d 533 (1974).
- Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334 (1976).