Eye on Ethics

Revisiting the Limits of Client Confidentiality
By Frederic G. Reamer, PhD

December 14, 2012: Newscasts shouted information impossible to absorb, that a lone shooter had murdered 20 children and six adults at Sandy Hook Elementary School in Newtown, CT. Almost immediately, people began speculating about shooter Adam Lanza’s motives and psychiatric challenges. Social workers were pressed into action, both as crisis intervention specialists and commentators, about what might have led Lanza to kill. Were there warning signs that foreshadowed his heinous assault? Was he receiving mental health services?

Sadly, the tragic Newtown murder scene is one of many that have put mental health professionals in the spotlight. Virginia Tech. Columbine. Aurora. Tucson. One horrific shooting after another has led countless clinical social workers to wonder, “What would I do if I had a client who fit ‘the profile’ and seemed capable of such unspeakable violence? Would I contact the police or notify potential victims without my client’s consent?”

Duty to Protect Redux
As most mental health professionals know, contemporary guidelines concerning disclosure of confidential information without clients’ consent to protect third parties are rooted in the famed 1976 California Supreme Court decision Tarasoff v. Board of Regents of the University of California.

According to the court record, the Tarasoff case involved Prosenjit Poddar, who was receiving outpatient mental health counseling at Cowell Memorial Hospital at the University of California at Berkeley in the late 1960s. Poddar informed his psychologist that he was planning to kill an unnamed woman (Tatiana Tarasoff) on her return to the university from her summer vacation.

After this counseling session during which Poddar stated his intention, the psychologist telephoned the university police and requested that they observe Poddar because he might need hospitalization as an individual who was “dangerous to himself or others.” The psychologist followed up the call with a letter requesting the help of the university police chief.

The campus police took Poddar into custody temporarily but released him based on evidence that he was rational. However, the police also warned Poddar to stay away from Tarasoff. At that point, Poddar moved in with Tarasoff’s brother in an apartment near where Tarasoff lived with her parents.

Shortly thereafter, the psychologist’s supervisor and the chief of the psychiatry department asked the university police to return the psychologist’s letter, ordered that the letter and the psychologist’s case notes be destroyed, and directed that no further action be taken to hospitalize Poddar. No one warned Tarasoff or her family of Poddar’s threat, and he never returned to treatment. Two months later, he killed Tarasoff.

Tarasoff’s parents sued the university’s Board of Regents, several employees of the student health service, and the university police chief plus four of his officers because the Tarasoffs’ daughter was never notified of the threat. A lower court in California dismissed the suit on the basis of immunity for the multiple defendants and the psychologist’s need to preserve confidentiality.

The parents appealed, an appellate court agreed with the trial court, and the California Supreme Court sent the case back to the trial court saying it must hear the case. The high court ultimately reheard the case and held that a mental health professional who has reason to believe that a client plans to harm another individual has a duty to protect the intended victim.

Beyond Tarasoff
Over the years, I have encountered many social workers who believe that the Tarasoff case provides definitive and sole guidance when clients appear to pose a threat to third parties. However, despite the case’s prominence and understandable influence, it is crucial that social workers also consult several other guidelines that have emerged following the Tarasoff case whenever they consider disclosing confidential information without client consent to protect third parties. Failure to consult all of these guidelines is risky.

Social workers should pay particular attention to provisions in the NASW Code of Ethics (section 1.07); federal guidelines related to the confidentiality of drug and alcohol treatment, military, and school records; federal law concerning electronically stored and transmitted communications; and individual states' laws and regulations governing management of confidential information in such duty-to-protect cases.

• Alcohol and drug abuse treatment records: The federal government has strict guidelines regarding release of confidential information relating to alcohol and substance abuse treatment (“Confidentiality of Alcohol and Drug Abuse Patient Records,” 42 CFR 2.1 [2012]). These regulations must be followed by any agency or organization that receives any federal funds and diagnoses, treats, or refers for treatment for anyone with drug or alcohol issues. These regulations broadly protect the identity, diagnosis, prognosis, or treatment of any client. Disclosures are permitted only with the written informed consent of the client, to medical personnel in emergencies, and by court order for good cause.

• Educational records: Social workers employed in educational settings should know the ins and outs of the federal Family Educational Rights and Privacy Act (also known as FERPA and the Buckley-Pell Amendment, 20 USC § 1232g [2011]). FERPA specifies the conditions for release of educational records or identifying information to other individuals, agencies, or organizations. The 1974 act covers educational institutions and agencies, public or private, that receive federal funds. It spells out when educational records may be released without written consent of a parent or guardian, including in emergencies if disclosure of information in the record is necessary to protect the health or safety of students or other people.

• Protected health information: Social workers must also know the provisions of HIPAA (45 CFR 160 and 164). The various HIPAA rules identify public health and welfare needs that permit the use and disclosure of individually identifiable health information without client authorization, including when disclosure may prevent imminent, serious, and foreseeable harm.

• Other federal guidelines: Social workers who provide clinical services to military personnel must know the unique confidentiality provisions included in the Military Rules of Evidence (Rule 513) that permit disclosure of confidential information in duty-to-protect cases. Also, social workers who have access to clients’ confidential federal records should be familiar with provisions contained in the Federal Privacy Act (5 USC §552a).

• State healthcare confidentiality laws: Individual states have enacted statutes and regulations that permit the disclosure of confidential healthcare information, including mental health information, without client consent to protect third parties. Criteria and conditions permitting disclosure vary considerably from state to state. Thus, social workers would do well to consult the relevant laws in their respective states. These provisions may be found in healthcare confidentiality statutes and social work licensing regulations.

Evolving Norms
When Poddar murdered Tarasoff in 1969, the NASW Code of Ethics was one page long and did not include any provisions concerning disclosure of confidential information without clients’ consent to protect third parties. Regrettably, a distressing number of tragic murders since then have led social workers to develop complex confidentiality protocols, based in part on diverse federal and state laws and regulations concerning protection of third parties.

The current Code of Ethics now offers social workers extensive guidance that they should follow in these circumstances. Unlike earlier generations of social workers, today’s practitioners must master complex case law, federal and state legislation and regulations, as well as guidelines in the Code of Ethics to help them think through when and how to intervene when clients pose a potential danger to others.

— Frederic G. Reamer, PhD, is a professor in the graduate program of the School of Social Work, Rhode Island College. He is the author of many books and articles, and his research has addressed mental health, healthcare, criminal justice, and professional ethics.