Ethical & Legal Issues in Counseling Essay

Counselors like any other medical professionals are guided by professional ethics when it comes to performance of their duties. More often than not, mental health professions are usually faced with the challenge to observe ethical guidelines and legal concerns due to the unique criteria that comes with their job. Primarily, the ethical requirement requires the confidentiality, privacy, and professional relationship between the counselor and the client. This is meant to safeguard the well being of the client and the society at large. The American Counseling Association however provides the ethical guidelines to help these professionals to be able to strike a balance between the ethical practice and the legal requirements depending on the condition of the patient. This leads us to the ethical and legal issues in counseling profession which stems from the 1976 Supreme Court ruling in the State of California better known as the Tarasoff v. Regents of University of California ruling. This paper shall review the California Supreme Court ruling giving details of the case and its implications on the counseling profession. It will also revisit the Virginia Tech Tragedy and draw comparisons between the incident and the Tarasoff decision. Review of California Supreme Court findings: Mental health professionals are confronted with scenarios in which the patients are expressive of some tendencies to cause harm to other individuals. This presents a dilemma on what should the mental health professional do in an effort to avert the imminent danger that the client might pose to the third party. In legal terms, this has been referred to as ‘the psychotherapy’s duty to warn or protect third parties’. The duty to warn and/or protect the third parties came up during the Tarasoff V. Regents of the University of California case in 1976. After learning of the incident in detail, the California Supreme Court observed that the psychotherapists engaged in the treatment of mentally disturbed patients had the duty to warn the threatened individuals based on their reasonable care in an effort to prevent the foreseeable danger that may arise from the condition of the patient (Buckner, and Firestone, 2000). In this landmark ruling, the Supreme Court had learnt of the negligence of the parties concerned which culminated in the death of the Tatiana Tarasoff. The facts of the case outlined that Prosenjit Poddar and Tatiana were in a relationship which to Poddar, was destined to be intimate. However, when Tatiana revealed to him that they were not going to be in such a relationship Poddar was heartbroken leading to the start of the emotional and mental breakdown. Tatiana left for Brazil in the summer of 1969 and Poddar’s conditions started to show some signs of improvement. He was later to enroll for psychotherapeutic sessions after a friend advised him to do so and became a voluntary outpatient at Cowell Memorial Hospital. He was placed under the care of Dr. Lawrence Moore and it is argued that he confided to the doctor that he was going to commit murder. He was referring to Tatiana, his supposed girlfriend when she returned from Brazil (Buckner, and Firestone, 2000). Dr. Lawrence Moore took an initiative to notify the police officers based on the campus regarding the intentions of his patient. He even wrote a letter to the police Chief based at the campus elaborating that Poddar was suffering from an acute and severe paranoid schizophrenic reaction and that he could be a danger not only to himself but also to the other people. The doctor proposed that he was ready to sign the seventy-two hour surveillance order if the police decided to pick up the patient and relocate him to Herrick Hospital. The doctor also observed that his patient’s behavior could at times be rational. Doctors Gold and James Yandell, who were supervisors to Dr. Moore, agreed with his diagnosis and recommendations that Poddar needed to be hospitalized. The patient was taken by the police and put into custody. The police officers including Gary L. Browning; Joseph P. Halleran; and Atkinson interrogated Podder and found out that he was indeed rational and had changed his attitude. The police however released Poddar from custody after he promised to avoid Tatiana and stay far away from her. On the same issue, Dr. Harvey Powelson, who was the Director of Psychiatry at Cowell Memorial Hospital ordered for the return of the letter that had been written by Dr. Moore to the police chief requesting for the 72-hour emergence detention of Poddar. He called for its destruction including the notes that had been written by Dr. Moore on the patient. The Director also issued warnings against taking of any action in putting Podder under the 72-hour emergency surveillance (Buckner, and Firestone, 2000). In the month of October 1969, Tatiana returned from Brazil and Poddar failed to live by the promise that he had made to the police and continued to pursue her. It is claimed that Poddar stopped his appointments with Dr. Moore after Tatiana had returned from her trip. However, the Supreme Court observed that Poddar had stopped seeing the psychotherapist after he was detained by the campus police. All the same, towards the end of October in 1969, Podder went to check on Tatiana at their home. At first he could not find Tatiana and was ordered to leave by Tatiana’s mother. Podder was to come back later equipped with a knife and a pellet gun. This time, he was lucky to find Tatiana alone at home. Tatiana refused to speak to Poddar and upon insisting, Tatiana started screaming. This prompted Poddar to aim at her with the pellet gun with Tatiana running wildly from the house. Poddar pursued her and was able to catch her up in the yard stabbing her severally. Poddar then retuned to the house and informed the police of what he had done asking to be handcuffed (Buckner, and Firestone, 2000). Dr. Kermit Gruberg, who was serving the Berkeley Police Department upon observation of Poddar in less than twenty four hours of the incident, confirmed that Poddar was a victim of paranoid schizophrenia. Poddar was charged with murder though he refused to enter a plea on the ground of insanity. Some times before he was tried, examinations from a neurologist who was hired by the defense indicated that Poddar had organic abnormalities in his brains. During the trial, Dr. Philip Grossi, Dr. Gruberg, Dr. Anderson, Dr. Moore, and Dr. Gold gave testimonies that Podder was insane and a paranoid schizophrenic. It was during the testimonies of Dr. Moore and Dr. Gold that the details about the victim’s plans to murder Tatiana were exposed. Poddar was convicted to second degree murder and following numerous appeals, he was released and ordered to immediately leave the United States, never to come back (Buckner, and Firestone, 2000). Vitaly and Lydia Tarasoff, who were parents to Tatiana, filed the wrongful death suits against the University of California and the psychotherapists who were treating Poddar. The parents alleged four actions which included failure to detain Poddar by the psychotherapists and failure to warn the Tarasoffs that Poddar was of potential danger to their daughter. The other two allegations included the one directed towards Dr. Powelson following his activities in abandoning a dangerous patient and the last one was regarding the ‘Breach of Primary Duty to Patient and the Public’ which was more same to the first allegation (Buckner, and Firestone, 2000). The rulings of the Alameda County Superior Court and the court of appeals dismissed the case ruling in the favor of the defendants. It was argued that there was no special relationship between the defendants and Tatiana or her parents and thus there was no obligation to warn. Dr. Powelson was said to have had no duty to commit Poddar and in case he did so, this action was fdiscretionary and in accordance with the statutes. The Tarasoffs were not satisfied and sought redress from the California Supreme Court (Buckner, and Firestone, 2000). California Supreme Court Decision and its impacts on counseling profession: The decision made in 1976 by the Supreme Court is said to be a second time in considering the case. The very first decision was made in 1974 whereas the second decision emanated from the re-hearing which was granted in 1975. The first decision exemplified that the campus police had a case to answer for having failed to warn Tatiana whereas the second decision was freed them from all legal responsibility (Buckner, and Firestone, 2000). In the second decision, psychotherapists were handed greater latitude to offer protection to the potential victims. In the first decision by the California Supreme Court, the defendants claimed that had no obligation to issue any warnings to Tatiana or the Tarasoffs since they were not patients to the therapists. The court rejected this view while observing some exceptions. Under this the court observed that though the defendants had an exceptional relationship with Poddar as their patient; they had even attempted to control his behavior through the initiation of a police detention (Buckner, and Firestone, 2000). The defendants were also opposed to the duty to warn potential victims calling it problematic in the performance of their duties. However, the Court was quick to assure that not all incidences reported could result into the duty to warn and that a reasonable degree of skill, knowledge, and care would be required in exercising good judgment within the acceptable professional opinion. On the need to protect the confidentiality of the patient, the Court observed that limitation must be observed in disclosing information to prevent danger of patients to other individuals. In the second decision, the California Supreme Court required the psychotherapists to discharge duty to the endangered third parties by other means apart from warning them. The ‘duty to warn’ was therefore changed to become ‘the duty to protect’ under the second decision. The Court held on the decision that required the psychotherapy to protect third party victims upon using reasonable care aimed at protecting the other individuals from the dangers posed by their patients. The Court held that the Psychiatrists could warn the would be victims directly, sending other people who are likely to inform the intended individual, informing the law enforcement agencies, or taking any necessary step depending on the situation (Buckner, and Firestone, 2000). Following the landmark ruling in the Tarasoff v. Regents of University of California, many individuals thought that such a decision was an abnormal one and likely to be overlooked. The professions in mental health also observed that this decision was aimed at undermining psychotherapy practice through the destruction of the principles of confidentiality. Such observations were to be proved wrong since in a couple of year’s time, a New Jersey Superior Court in the McIntosh v. Milano (Buckner, and Firestone, 2000), indicted a psychiatrist basing on the Tarasoff incident. It has to be observed that the California Supreme Court decision which required the mental health professions to give a warning to third party individuals who were in potential danger from their patients has been adopted in most jurisdictions and the decision has even been broaden to incorporate other areas in healthcare practice (Buckner, and Firestone, 2000). The American Counseling Association (ACA) elaborates on the steps to be taken when there is a conflict between the established code of ethics and law requirement. The ACA observes that in the event there is a conflict, the counselors have the duty to make known their commitment to the ACA Code of Ethics and when the conflict stands unresolved by this; counselors have no choice but to relinquish their code of ethics and adhere to the laws and regulations. This means that the law reigns when there is a conflict between the established ethical responsibilities and the law (Docstoc, 2010). The Tragedy at Virginia Tech: Preliminary facts regarding the tragic incident at the Virginia Tech in the year 2007 were appalling. On this fateful day, 33 students and staff lost their lives in a shooting spree carried out by one of the students at the institution. The perpetrator was an English student known as Cho Seung-Hui who was described as a loner by his colleagues and is said have been identified by at least two of his professors as troubled. Earlier on the fateful day, Cho Seung-Hui is said to have mailed a tape to NBC News after having killed two of his victims. In the tape, he fumed against the wealthy in the society and argued that the society was to blame for his actions. The tape indicates that Cho Seung-Hui was full of rage and that he was emotionally troubled. His roommates and friends observed that Cho Seung-Hui showed anti-social tendencies on campus. He is said to have rarely engaged in conversations and was known for one word answers especially on questions that could expose much of him. Further more it has been established that much of the writings made by Cho in his course work revealed violence and murderous images and fury directed towards the female gender (Angelo, 2007). The incident at the Virginia Tech relates in many aspects to the Tarasoff case where the defendants failed to issue warning to the victim and her family. The United States Department of Education findings indicate that the institution dishonored the established campus crime-reporting legislations in responding to the shootings. It is argued that after the first shooting incident occurred at around a quarter past seven in the morning only for the university to issue the e-mail warning at around nine thirty. A moment later the gunman went on a shooting spree which resulted in the death of 33 students and professors including the gunman who shot himself. Timely warning was not issued and that the e-mail that was issued was inadequate as it failed to comprehensively pass the message. The mail read, ‘shooting incident’ without mentioning any fatalities. There is no justification for the two hour delay from the very first incident and the vagueness of the warning. The Virginia Tech officials had enough information that could have helped in identifying the threat and passing information to students and employees (Lipka, 2010). After the shooting, many people have claimed to have raised an alarm regarding Cho’s behavior two years before the incident. His English teacher at the institute is said to have been alarmed by his drawings and even asked him to stay out of class. There were also two other complaints rose by female students at the institution. Cho is said to have contacted one of the female in person and by phone and the other through instant message. After the incident were reported to the campus police, the only asked Cho not to repeat his advances. In the year 2005, the victim is said to have been ordered to a psychiatric observation by a court which revealed that he posed imminent danger to himself. He is also said to have spoken of suicide on several occasion. The officials from higher education claims that these observations are in contravention with the student’s right to privacy. Thus the institution was not in any position to conduct the parents of Cho without his consent on his background (Angelo, 2007). It is evident that those who had some crucial information on Cho Seung-Hui did not take the bold step on sharing the same. It is assumed that by sharing the information that colleagues and professors held about that the young man harbored could have seen the ugly incident averted through psychotherapy. It has been argued that his roommates and some professors had observed some warning behavioral traits. According to the findings of the 2007 Report to the President on Issues Raised by the Virginia Tech Tragedy; it was found that there are impediments in sharing of crucial information. One of the findings read; Education officials, healthcare providers, law enforcement personnel, and others are not fully informed about when they can share critical information on persons who are likely to be a danger to self or others, and the resulting confusion may chill legitimate information sharing (The White House, 2007, para 4) Conclusion: In the Tarasoff incident, the patient is said to have revealed of his intention to kill the girlfriend to the psychiatrists but the therapist failed to issue a warning to the intended victim which tragically ended in the death of the victim. The therapists were found to be answerable for having failed in their duty to warn the victim of the potential danger posed by their patient. The psychiatrists cited breach of confidentiality in their defense which was dismissed by the Supreme Court ruling by offering guidelines on the confidentiality issue. The Virginia Tech incident on the other hand presents a scenario where the institution was barred by the right to privacy to inquire into the psychiatric background of the student gunman and this led to the fatal incident where many lives were lost in cold murder. Reference: Angelo, J. M. , (2007). Tragedy at Virginia Tech. Retrieved on 17th July 2010 from; http://www. universitybusiness. com/viewarticle. aspx? articleid=758 Buckner, F. , and Firestone, M. , (2000). â€Å"Where the Public Peril Begins†: 25 Years After Tarasoff. Retrieved on 17th July 2010 from; http://cyber. law. harvard. edu/torts01/syllabus/readings/buckner. html Docstoc, (2010). Ethical and Legal Issues in Counseling Practice. Retrieved on 17th July 2010 from; http://www. docstoc. com/docs/18350933/Ethical-and-Legal-Issues-in-Counseling-Practice Lipka, S. , (2010). Virginia Tech Contests Education Department’s Assertion of Late Warning in 2007 Shootings. Retrieved on 17th July 2010 from; http://chronicle. com/article/Virginia-Tech-Disagrees-With/65613/ The White House, (2007), Report to the President on Issues Raised by the Virginia Tech Tragedy, Retrieved on 17th July 2010 from; http://www. hhs. gov/vtreport. html