Clinical flexibility and confidentiality: Effects of reporting laws

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Abstract
Legal constraints upon therapeutic flexibility, resulting in breaches of confidentiality, can promote counterproductive effects upon patients and society. Conflicts can be created for mental health professionals who sometimes must choose between maximum self-protection and doing what they believe is ethical. A survey of forensic psychiatrists indicated that most believe they face ethical problems created by some ambiguities in current reporting statutes if they are interpreted to mandate reporting and warning. Emphasis is given: (1) to the ethical choice faced by therapists as to whether rigidly to report and warn to limit liability in all Tarasoff-type situations and in some ambiguous child abuse situations, or to take an alternative action when it is clinically indicated for the benefit of a patient and/or society; (2) to the importance of understanding the distinction between potential criminal liability for failure to report under many child abuse laws, and the risk only of civil liability in Tarasoff-type cases; and (3) to appreciate the flexibility permitted by current “Tarasoff” laws. Our case histories demonstrate that mandated erosion of therapeutic confidentiality can present serious problems for patients and others. Suggestions are included for modifications in the current reporting statutes, focusing on the perspective that clinical flexibility is an essential adjunct to community protection as well as to effective therapy.