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Action paper for ethical issues in counseling.


2) It is unlawful for any person who has human immunodeficiency virus infection, when such person knows he or she is infected with this disease and when such person has been informed that he or she may communicate this disease to another person through sexual intercourse, to have sexual intercourse with any other person, unless such other person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.

What, then, does the therapist or health professional do who learns that a client or patient has not disclosed their HIV status to their sexual partner? If the client is on probation and his treatment with the therapist is mandated, the course of action is more straightforward. The treatment plan consists of full disclosure to whichever family members the provider believes it necessary to inform. The treatment plan at the outset can also specify no unprotected sex or high-risk sex. If the client violates the treatment plan, then itís rational to report him to the probation officer and notify the spouse or partner. Because offenders are very rarely honest, nor do they report when they are in violation of their treatment contract, the therapist needs to be very alert to signs of lack of follow-though.

The situation is even more complex in the more typical therapy situation. One of the presenters (JPS), a physician, said,

I believe that if someone is in danger, you have to act. What Iíd first do is try to persuade the patient to disclose, to get the patient to use safe sex, and to get the partner tested. If the patient refuses, I tell him that he has a choice Ė either he tells the spouse or partner, or I will. I do understand that in some states counselors cannot tell, and thatís a real problem for them. Itís also a challenge if the HIV-positive person doesnít have a steady partner and is just out there having unsafe sex. In that case you have to try to get the client to change their behavior. I also believe that if the state considers it a felony for an HIV positive person to have unprotected sex with an unknowing partner, the therapist may indeed report this. The informed consent forms should clearly state that this will be disclosed.

The American Medical Associationís Code of Medical Ethics (150 th edition) for physicians states (p.62).

Exceptions to confidentiality are appropriate when necessary to protect the public health or when necessary to protect individuals who are endangered by persons infected with HIV. If a physician knows that a seropositive individual is endangering a third party, the physician should, within the constraints of the law, (1) attempt to persuade the infected patient to cease endangering the third party; (2) if persuasion fails, notify authorities; and (3) if the authorities take no action, notify the endangered third party.

The American Psychiatric Associationís Practice Guideline for the Treatment of Patients with HIV/AIDS states,

If a patient refuses to change behavior that places others at risk for HIV infection or to inform individuals at ongoing risk, or if the psychiatrist has good reason to believe that the patient has failed to or is unable to cease such behaviors or to inform those at risk, it is ethically permissible for the psychiatrist to notify identifiable individuals at risk or to arrange for public health authorities to do so. (p. 370).

The Canadian Psychiatric Association, in their 2002 position statement, ďThe Duty to Protect,Ē stated,

The CPA takes the position that its members have a legal duty to protect intended victims of their patients. This duty to protect may include informing intended victims or the police, or both, but may more easily be addressed in some circumstances by detaining and possibly treating the patient. . . .A duty to protect (warn, or inform) exists

In the event that risk to a clearly identifiable person or group of persons is determined

When the risk of harm includes severe bodily injury, death, or serious psychological harm

When there is an element of imminence, creating a sense of urgency. . . The imminence could be interpreted as 3 years in the definitive Canadian case.

In the United Kingdom, the guidelines are not definitive. In 2000, a report from the UK stated,

How far should a doctor go in attempting to protect others from HIV risk from his patient? Many clinicians are very uncomfortable with knowing that an HIV-positive patient is continuing to have unsafe sex with a person whom the patient is unwilling to inform. After attempting to influence the patientís behaviour or willingness to discuss his HIV status, the clinician may be left either unable to at further because of confidentiality, or feeling obliged to breach confidentiality to protect the third party. General Medical Council guidance allows either, so long as the clinician is able to justify his actions. Each case has to be judged on its particulars (Pinching Higgs, and Boyd, 2000).

As the above report shows, in some situations the legal requirements and constraints on reporting may differ from the ethical. In the authorís opinion (JPS), it is unethical for a health care professional to knowingly permit one person to endanger another and to do nothing about it. It may be different for a licensed counselor or therapist, as some state laws and licensing board regulations specifically prohibit the professional from disclosing a clientís HIV status, even in cases of a duty to warn. One therapistís solution is to routinely strongly encourage both addict and spouse to get STD testing, ďbecause someone may have done something theyíre not disclosing.Ē

The American Psychological Associationís Code of Ethics (2002) states,

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