Legal and Ethical implications of HIV and Duty to Warn For Counselors: Does Tarasoff Apply?

Abstract

The Tarasoff decision has been used as a benchmark in the professional literature for arguments on a counselor's duty to warn individuals who are sexually intimate with a client diagnosed as having HIV infection. Implications of the current application of Tarasoff principles to those cases are considered and conclusions are drawn that question such an application. The counseling profession's ethical standards related to these issues and the professional literature are reviewed with regard to current legislative and case law. Potential alternate courses of action that would be indicated by a broad application of Tarasoff are presented.

HIV Medical Care Provider Practices for Reducing High-Risk Sexual Behavior: Results of a Qualitative Study

“…18,20 Other reasons cited by providers for avoiding conversations about sensitive issues with patients include not having a good method for initiating these conversations with patients, uneasiness about the awkward moments these discussions may produce, and concern about one's ethical obligation upon becoming aware that an HIV-infected patient is participating in high-risk behavior, 19 as a provider's legal and ethical obligation pertaining to ''duty to warn'' varies widely state to state. 21,22 In a national random-sample survey of more than 4000 HIV medical care physicians that focused on interactions with new patients, certain characteristics of physicians and patients were related to whether or not physicians asked patients about sex and drug behaviors. Being male and a family practice physician or general practitioner were strongly predictive of not addressing these issues, as was the belief that patients would be offended if questions regarding sex and drug behaviors were asked.…”

“Doc, There's Something I Have To Tell You”: Patient Disclosure to Their Psychotherapist of Unprosecuted Murder and Other Violence

“…For example, how one even defines "physical harm" may be an important issue to address. Many have questioned if an HIV-positive or AIDS-infected client who discloses to a professional the intent to engage in unprotected sexual intercourse with another person meets the requirements of these statutes (e.g., Chenneville, 2000;Hook & Cleveland, 1999;Huprich, Fuller, & Schneider, 2003;Stanard & Hazler, 1995). No clear consensus is present at this time, and mental health professionals themselves are found to be quite divided on this issue (Simone & Fulero, 2001).…”

Breaching confidentiality with HIV-positive clients: the effects of client gender, client dangerousness, clinician HIV-related knowledge and stigmatization

“…Practitioners hold varying views on this ethical dilemma. Some practitioners argue in favor of applying Tarasoff principles to psychotherapy with HIV-positive individuals, while others argue against it (Daniolos & Holmes, 1995;Dyer, 1988;Eth, 1988;Kermani & Weiss, 1989; Knapp & VandeCreek, 1992;Perry, 1989;Searight & Pound, 1994;Stanard & Hazier, 1995;Zonana, 1989). For example, many researchers have argued that the Tarasoff precedent does not apply to HIV-positive clients who put others at risk because the threat is usually passive, not active (Daniolos & Holmes, 1995;Kermani & Weiss, 1989;Knapp & VandeCreek, 1992;Perry, 1989).…”

“…In addition, the presence of other sexually transmitted diseases (such as herpes) increases the risk of contracting HIV and transmitting it (Chenneville, 2000). Thus, the unpredictability of the course of the disease, as well as the variability of infectiousness from client to client due to the above factors, makes danger prediction remarkably difficult (Stanard & Hazier, 1995).…”

“…In addition, it has been argued that the assessment and prediction of actual client dangerousness by mental health professionals is not reliable, especially when one considers that many of the issues involved with a dangerous HIV-positive client are medical in nature (Chenneville, 2000). Many psychologist researchers and practitioners have agreed with this argument (Knapp & VandeCreek, 1992;Stanard & Hazier, 1995;Totten, Lamb, & Reeder, 1990).…”