Risky Aspects of Practice
| Author | Marilyn J. Samuels/Elayne M. Tanner |
| Pages | 161-179 |
Chapter
15
Risky
Aspects
of
Practice
This chapter looks
at
some
of the
aspects
of
practice where social workers
most
often
run
into
difficulty
in
terms
of
lawsuits
and
complaints
to
regula-
tory
bodies.
A.
Confidentiality
Issues surrounding confidentiality (which
are
also discussed
in
chapter
9) are
some
of the
most
difficult
a
social worker will
face
in his or her
professional
life.
While
chapter
9
discusses
the
legal
mandate
of
confidentiality, this sec-
tion will
focus
on the
murky areas
of
confidentiality, where
the
course
of
action
is not as
clear
and
where
the
social worker
is
most likely
to run
into
unexpected
difficulty.
In the
context
of
professional activity, confidentiality
is
"the obligation
of a
social
worker
or
other
professional
not to
reveal
records
of or
communications
from
or
about
a
client obtained
in the
course
of
practice."1
The
duty
of
confidentiality
was first
established
in the
Ameri-
can
case
of
MacDonald
v.
Clinger,
where
the
court held that
a
patient could
sue
a
psychiatrist
for
disclosing
to a
third party personal information acquired
during
therapy.2
It
has
often
been said that
the
duty
to
keep matters confidential
is
gov-
erned
by
ethics, whereas
the
right
to
disclose information
is
governed
by
law.3
As we
have seen,
in
some circumstances, mandatory reporting,
for
example,
the
social worker
is
legally bound
to
disclose information obtained
1.
A.
Saltzman
and K.
Proch,
Law and
Social
Work
Practice (Chicago: Nelson-Hall, 1994)
at
392.
2. 446
N.Y.S.2d.
801
(App. Div. 1982).
3. C.
Bisman, Social
Work
Practice: Cases
and
Principles (Pacific
Grove,
CA:
Brooks/Cole Publishing Company, 1994)
at 47.
161
162
MANAGING
A
LEGAL
AND
ETHICAL
SOCIAL WORK PRACTICE
during
therapy. Herein lies
the
contradiction inherent
in the
concept
of
con-
fidentiality.
How
does
the
social worker navigate between
his or her
ethical
obligations
to
keep matters confidential
and the
obligations
to
disclose under
certain
circumstances, when those circumstances
are
very often
not
clearly
articulated?
I.
Duty
to
Warn
Although
clients have
a
right
to
confidentiality, there
are
exceptions
to
this
right,
particularly
in
cases
where
the rights of
others
are in
danger
of
being
infringed.
The
most common exception
is the
professional's "duty
to
warn"
when
a
client threatens
to
commit
a
criminal
act or
harm
a
third party.
The
best-known
legal precedent establishing
a
duty
to
warn
is the
1976 Califor-
nia
Supreme Court decision
in
Tarasoff
v.
Board
of
Regents
of the
Univer-
sity
of
California.4
In
this case, Prosenjit Poddar,
a
client
of the
student health
service
at the
University
of
California
at
Berkeley, confided
to his
psycholo-
gist
that
he was
going
to
kill
a
young woman, Tatiana
Tarasoff,
when
she
returned
to
university
after
the
summer break.
The
psychologist then tele-
phoned
the
campus
police
to
warn them that they should consider Poddar
a
candidate
for
possible hospitalization because
he
might
be a
danger
to
him-
self
or
others.
The
telephone call
was
followed
by a
letter
to the
campus
police chief advising
him of the
situation.
The
campus police responded
by
temporarily taking Poddar
into
custody,
but
released
him
when they
deter-
mined
that
he was
rational
and not a
danger
to
himself
or
others.
They also
warned
him to
stay away
from
Tarasoff. Sometime
later,
the
chief
of the
uni-
versity's
psychiatry department contacted
the
campus police
and
asked them
to
return
the
psychologist's
letter.
He
then ordered
the
destruction
of the
let-
ter and the
psychologist's notes,
and
directed
the
psychologist
to
take
no
fur-
ther
action against Poddar. Poddar,
who
never returned
to
therapy, murdered
Tarasoff
two
months later. Tarasoff
s
parents sued
the
university,
the
campus
police,
and
employees
of the
student health service
for
negligence
in not
noti-
fying
their daughter about
the
threat.
A
lower court dismissed
the
parents'
action,
but on
appeal
the
Supreme Court
of
California reversed that judgment
and
found
the
defendants negligent
for
failing
to
warn Tarasoff.
The
court
held that
a
therapist has, under certain circumstances,
a
duty
to
protect
an
intended victim:
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
this
duty
may
require
the
thera-
4. 529
P.2d
553
(1974), vac. reheard
in
bank
(1976).
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