Implications of Landmark Legal Cases on the Counseling Profession

Implications of Landmark Legal Cases on the Counseling Profession

Implications of Landmark Legal Cases on the Counseling Profession

Under Florida's mandatory reporting laws, knowledge or reasonable suspicion of abuse, neglect or abandonment are applied as the standards for reporting (Florida Department of Health [DOH], n.d.). The actions that must be reported include physical abuse, sexual abuse, neglect by parties responsible for care, words or behaviors that could cause psychological damage, and exploitation (DOH, n.d.).

Mandated reporters must provide their names, addresses and contact information in their reports (DOH, n.d.). However, their identities will be kept confidential by the investigating agencies (DOH, n.d.). Individuals who comply with the law and report abuse, in good faith, are protected from civil or criminal liability (DOH, n.d.). On the other hand, those who do not fulfill their mandatory duty to report are committing a second-degree misdemeanor (DOH, n.d.).

Professional Associations' Views on Duty to Protect

In specific circumstances, mental health practitioners have a duty to protect clients and third parties, and may breach confidentiality in discharging that duty (Herlihy & Corey, 2006). Tarasoff and subsequent case law require practitioners to follow required standards of practice: conduct a thorough assessment, document findings; and, if warranted, taking action to protect third parties (Herlihy & Corey, 2006). Practitioners who properly perform their duties under Tarasoff find that the law converges with their professional ethics. They breach their clients' confidentiality only for compelling reasons (Herlihy & Corey, 2006).

The American Counseling Association (ACA) Codes of Ethics that speak to the Florida mandated reporting laws include Section B.1.c (Respect for Confidentiality), and B.1.d. (Explanation of limitations). (ACA, 2005)

The American Mental Health Counselors Association (AMHCA) Standard 2a, and 2c, respectively speak to the rights every client has to confidentiality, and the importance of informing clients of the limits of confidentiality where, in extreme circumstances, a counselor must breach client confidentiality to protect the life of the client, or the lives of others that may be harmed, as well as protecting children, and elders, from harm (AMHCA, 2010).

Professional Statutes Regarding Duty to Warn

The following are the Florida mandatory reporting laws, specific to the above classifications:

Florida Statute 491.0147 Confidentiality and Privileged Communication

This statute states that any information exchanged between the counselor and the client shall be confidential (Florida Department of Health [DOH], n.d.). The confidentiality may be waived if the counselor becomes a defendant in an alleged civil, criminal, or disciplinary complaint filed by a client; receives a request from a client to waive confidentiality; or determines that the client may harm himself or herself, the counselor, or other individuals, or the counselor uncovers issues of child or adult abuse or neglect (DOH, n.d.).

Florida Statute 415.1034 Mandatory Reporting Issues

This statute addresses mandatory reporting issues that require counselors to immediately report, in writing or via designated hotline telephone numbers, any knowledge or evidence of adult or child abuse or neglect (DOH, n.d.). The information must include the name, age, race, sex, physical description and location of each victim alleged to have been abused; any names addresses and telephone numbers of a victim's family members, and alleged perpetrators; name and contact information of the professional counselor, along with the nature of the abuse, and actions taken by the counselor (DOH, n.d.).

Mental health practitioners have never been able to offer their clients unlimited confidentiality (DOH, n.d.). However, in recent years they have seen their ability to protect confidentiality further diminished by increasing demands for accountability, widening access to information in records, mandated child abuse reporting, and expanding court involvement in professional decision-making (DOH, n.d.).

The Issue of Confidentiality

Confidentiality can be defined as the obligation a counselor has to not discuss information, about a client, to anyone, unless agreed upon by both parties (Koocher & Keith-Spiegel, 2009). Clients, who feel their counselor-client confidence has been breached, can sue the counselor, and may also pursue criminal penalties, if supported by state law (Koocher & Keith -Spiegel, 2009). As stated, herein, there are exceptions to the issue of client confidentiality (Koocher & Keith -Spiegel, 2009). In certain cases, the law dictates that individual rights must yield to the greater good of society, or to more vulnerable individuals (Koocher & Keith-Spiegel, 2009).

The Landmark Case of Tarasoff v. Board of Regents of the University of California

Following the Tarasoff decision which, for the first time, imposed a liability on a therapist for failing to protect a potential victim (Tarasoff v. Board of Regents of the University of California, 1976, Citation 551 P.2d 334), many practitioners believed they had a duty to warn, and that this duty was sufficiently compelling to require a breach of confidentiality (Casebriefs, 2010). In the Tarasoff case, Prosenjit Poddar, a male student of Bengali culture, who was studying at the University of California-Berkley, met Tatiana Tarasoff, and pursued her as a love interest (Casebriefs, 2010). Unfortunately, Tatiana did not feel the same, and after several attempts to let Prosenjit know that she was not interested, she had to formally reject his offers of a romance (Casebriefs, 2010). Prosenjit became depressed, was not eating or sleeping appropriately, and spent hours listening to covert recordings he had made of his conversations with Tatiana (Casebriefs, 2010). At the urging of a friend, Prosenjit sought counseling at the university hospital (Casebriefs, 2010).

During