|A community worker may have a duty to breach their client’s confidence in two types of situations:|
|the community worker is told by a client or learns that a client has committed or intends to commit a criminal offence (misprision of felony)|
the community worker receives information from a client that indicates that a third party is in physical danger at the hands of the client.|
|In the case of a duty to warn, there are a number of issues to be considered:|
|Is there a duty of confidence owed in the first place either ethical, conduct, contractual, legislative?|
What are the consequences of breaching a duty of confidence either ethical, contractual, disciplinary, regulatory, industrial, legal?|
What are the consequences of not breaching a duty of confidence either ethical, contractual, disciplinary, regulatory, industrial, legal?|
Is there a real or reasonable likelihood of menace or danger?|
Does the community organisation have policy or procedures in place?|
Who makes the decision and disclosure and what are the possible consequences?|
Is external advice or assistance appropriate to make the decision?|
|The ACA code of conduct states:|
2.3.4 Exceptional Circumstances
126.96.36.199 Exceptional circumstances may arise which give the counsellor good grounds for believing that serious harm may occur to the client or to other people. In such circumstances the client's consent to change in the agreement about confidentiality should be sought whenever possible unless there are also good grounds for believing the client is no longer willing or able to take responsibility for his/her actions. Normally, the decision to break confidentiality should be discussed with the client and should be made only after consultation with the counselling supervisor or if he/she is not available, an experienced counsellor.
188.8.131.52 Any disclosure of confidential information should be restricted to relevant information, conveyed only to appropriate people and for appropriate reasons likely to alleviate the exceptional circumstances. The ethical considerations include achieving a balance between acting in the best interests of the client and the counsellor's responsibilities to the wider community.
184.108.40.206 Counsellors hold different views about the grounds for breaking confidentiality, such as potential self-harm, suicide, and harm to others. Counsellors must consider their own views, as they will affect their practice and communicate them to clients and significant others e.g. supervisor, agency.
|In this case, the duty to warn arises because of a duty of care in negligence. That is, if the community worker does not warn, they will be negligent. It is worth reciting the cases that lead to the creation and expansion of the duty to warn.|
In a United States case called Tarasoff, a man called Prosenjit Poddar killed Tatiana Tarasoff. Tarasoff’s parents alleged that Poddar had confided his intention to kill Tarasoff to Dr Lawrence Moore at Cowell memorial Hospital at the University of California. Moore had contacted the police who had detained Poddar but had released him after Moore’s supervisor Dr Harvey Powelson had directed no further action should be taken against Poddar. The Supreme Court of California found: "When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of his duty may require the therapist to take one or more various steps, depending upon the nature of the case. Thus is may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances." (Justice Tobriner) Tarasoff established legal principles that are followed by the Courts in the United States today.
|The duty arises in cases of suicide management. The limits of disclosure will always be subject of the a range of laws such as privacy and confidentiality laws, ethical and conduct duties, but as seen these legal obligations have competing duties to warn based in a duty of care to others, such as in negligence. |