Conditions of Disclosure in
Counseling Sexually Active Clients with HIV
Elliot D. Cohen, Ph.D.
The present HIV pandemic presents challenges for mental health practitioners who, in the course of therapy, sometimes become privy to confidential information about potentially lethal sexual relationships ongoing between the client and one or more uninformed partner(s). In this lecture I will discuss the current professional/legal status of making disclosure in such cases, and my work as an applied professional ethicist in the development, drafting, and defense of a limited rule of disclosure.
State statutes typically make it a crime for a person who knows that he or she is HIV positive to engage in unprotected sex with an uninformed sexual partner. The victim of such a crime need only suffer emotional distress upon learning about exposure to the deadly virus, and need not actually contract the virus from the offender. With some variation in state laws, there appears to be consensus that such acts of endangerment are beyond the tolerance of law and public decency. There is considerably less agreement about what is acceptable for mental health practitioners (such as psychologists, mental health counselors, and clinical social workers) who, in the provision of treatment, confidentially learn that their HIV positive clients are similarly endangering third party sexual partners. Do these professionals also have a duty to disclose such potentially life saving information to the third parties at risk? An affirmative answer to this question may seem compelling in the wake of the famous Tarasoff case in 1976, which, in recognizing a professional duty to warn unsuspecting third parties of immanent danger of bodily harm posed by a client, announced that “privacy ends where the public peril begins.” However, in 1999, the Texas Supreme Court denied that mental health practitioners in Texas owe a duty to warn third parties, “because the confidentiality statute governing mental-health professionals in Texas makes it unwise to recognize such common-law duty” (Thapar v. Zezulka, 994 S.W.2d 635). In fact, the current corpus of legal statutes, case law, and professional codes of ethics in health care do not, for the most part, recognize a professional duty to breach professional-client confidentiality in order to put unsuspecting sexual partners of HIV positive clients on notice. Rather, most legal and professional authorities have, within certain parameters, left these potentially lethal decisions to the discretion of the individual professional. For example, according to Florida Statute 456.061, a practitioner regulated by the Division of Medical Quality Assurance (which includes psychologists, mental health counselors and physicians) who discloses confidential information to a sexual partner or needle-sharing partner of an HIV positive client under certain specified conditions is immune from criminal and civil liability. Further, the statute provides that a practitioner is also immune from criminal and civil liability even if he or she fails to make disclosure. Accordingly, the statute leaves disclosure to the discretion of the practitioner and provides legal immunity in either case. In the late eighties, when I began wrestling with the thorny disclosure question posed by HIV positive, sexually active clients, there were few clearly developed standards in mental health practice that explicitly addressed the question. In 1990, I published a paper in the American Counselors Association (ACA) Journal of Counseling and Development entitled, “Confidentiality, Counseling and Clients Who have AIDS: Foundations of a Model Rule.” This paper used classical ethical theories to construct and defend a limited disclosure rule. In 1994, I was commissioned by Hatherleigh Corporation to develop ethical standards for counseling sexually active clients with HIV as based on my 1990 ACA...