Susan Smith is a long-term client. You have been treating her for symptoms related to Borderline Personality Disorder and alcoholism. In your time together, she has had brief periods of sobriety followed by episodes of heavy drinking. She also has a history of legal problems, including two DUIs, which she attributes to increases in impulsivity during times of heavy alcohol consumption. Susan comes to an afternoon session reeking of alcohol, slurring her words and nodding off. In an attempt to evaluate how much alcohol she has had and whether she has engaged in any impulsive behaviors, you begin to ask her questions. At this point, Susan becomes agitated and storms out of your office. Following her outside, you see her getting into a car and driving away.
Psychologists are often confronted with difficult situations in their clinical practices. Situations such as the one described above require them to make quick decisions that may have both ethical and legal implications. In such a situation, the psychologist must aim to uphold the APA’s Ethics Code while at the same time considering relevant law, regulations and other governing legal authority in the jurisdiction.
With all of this in mind, the psychologist also has to deal with the ethical principle that states: “If the psychologist’s ethical responsibilities conflict with law, regulations or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict in a responsible manner.” (APA, 2010; Introduction)
Confronted with an intoxicated patient who chooses to drive anyway, a psychotherapist must carefully consider the ethical duty to minimize harm to the patient or others (i.e., Principle A: Beneficence and Nonmaleficence). The duty to minimize harm must also be considered as related to the therapist’s legal obligation to protect and preserve the client’s confidentiality. Although the client is Susan, it is possible that her decision to get behind the wheel in her current state will not only put her at risk but will also put others at risk.
In the above example, although Susan may cause serious harm by driving while intoxicated, she has not disclosed an intent or plan to harm an identifiable third party or herself. Consequently, depending on the local jurisdiction, Susan’s behavior may not meet the Tarasoff-type criteria that would allow the therapist to legally breach Susan’s confidentiality without risk of adverse action. This forces the therapist to decide between (a) violating the client’s confidentiality in an attempt to protect the client and others or (b) preserving the client’s confidentiality and potentially putting the client and others at risk.
Ideally, when Susan became a client, she would have completed a thorough informed consent process documenting the limits of confidentiality (APA, 2010; Standard 3.10, 4.02) and the therapist’s ethical and/or legal duty to breach that confidentiality under specified circumstances. In addition, the therapist can also use the informed consent to elicit the client’s agreement (i.e., a quasi-contract) about how the therapist will respond to the patient’s future dangerous behaviors. This process helps to ensure that the client is aware of the therapist’s duties and responsibilities and knows what to expect from the therapist if particular circumstances arise.
In the above situation, the therapist would both inform the client of the therapist’s duty to warn and protect and also obtain the client’s agreement about the therapist’s course of action should the client come to session dangerously under the influence.
Thus, this informed consent would: a) describe the circumstances that would trigger the therapist’s ethical and/or legal duty to breach confidentiality when the patient poses an imminent threat of serious physical harm to herself and/or reasonably identifiable others and b) contain an agreement about what the steps the therapist would follow (including breach of the client’s confidentiality) if the patient appears dangerously intoxicated at a session.
Although this latter aspect of the informed consent (i.e., client’s written agreement to a future course of action under specified circumstances) may not be legally enforceable, it likely helps to insulate the therapist from adverse actions should the therapist have to make the difficult decision to breach because of the client’s acute intoxication. “A well-reasoned protective disclosure can be morally justified without having to be legally compelled” (Felthouse, 1993, p. 424). To be effective, this pre-agreed course of action should be as specific as possible.
This dual-purposed informed consent agreement becomes particularly important for therapists who work with special populations such as alcoholics or those characterized by high risk (e.g., suicidal or borderline personality disorder) behaviors.
Use of such an agreement provides clarity and agreement about how the therapist will handle foreseeable risk events before treatment even begins. Note, however, that although this dual-purpose informed consent likely reduces risk it does not eliminate it. Still, the risk of breaching confidentiality will likely be lower than doing so in the absence of any prior agreement.
The therapist’s specifically described course of action might include a plan to: a) assess the client’s level of impairment, b) ask the patient not to drive and to make an alternative arrangement to get home and then c) breach incrementally by first calling a family member, for example, before calling police when the clinician judges a client to be dangerously intoxicated. Bear in mind that the therapist must actually follow through on the agreement, as failure to do so may actually increase risk for therapist.
While we are not aware of any existing case law that evaluates the legal effectiveness of the strategy described here, we believe that this is a reasonable way for therapists to protect themselves and their clients when faced with this challenging type of scenario.
Finally, if at all possible, the therapist should attempt to get immediate consultation with an experienced colleague, and this consultation should be documented. Remember, the three critical components of effective risk management are documentation, consultation and informed consent. (The Trust, 2013)
Cassandra L. Boness, M.A., is a graduate student in clinical psychology at the University of Missouri-Columbia working with Kenneth J. Sher, Ph.D. Her chief research interest relates to alcohol use disorder diagnosis. Her clinical interests include ethics, treatment of deaf clients and dialectical behavior therapy. Her email address is: firstname.lastname@example.org. Joe Scroppo, Ph.D., JD, is a risk management consultant for The Trust and a forensic psychologist and attorney in Woodmere, N.Y. His e-mail address is: email@example.com