Ensuring confidentiality is the cornerstone of trust within the doctor–patient relationship. However, health care providers have an obligation to serve not only their patient’s interests but also those of potential victims and society, resulting in circumstances where confidentiality must be breached. This article describes the attitudes of mental health professionals (MHPs) when patients disclose past crimes unknown to the justice system. Twenty-four MHPs working in Swiss prisons were interviewed. They shared their experiences concerning confidentiality practices and attitudes towards breaching confidentiality in prison. Qualitative analysis revealed that MHPs study different factors before deciding whether a past crime should be disclosed, including: (1) the type of therapy the prisoner-patient was seeking (i.e., whether it was court-ordered or voluntary), (2) the type of crime that is revealed (e.g., a serious crime, a crime of a similar nature to the original crime, or a minor crime), and (3) the danger posed by the prisoner-patient. Based on this study’s findings, risk assessment of dangerousness was one of the most important factors determining disclosures of past crimes, taking into consideration both the type of therapy and the crime involved. Attitudes of MHPs varied with regard to confidentiality rules and when to breach confidentiality, and there was thus a lack of consensus as to when and whether past crimes should be reported. Hence, legal and ethical requirements concerning confidentiality breaches must be made clear and known to physicians in order to guide them with difficult cases.
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Tarasoff v. Regents of the University of California (1976) 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14.
Gesundheitsgesetz Basel Stadt (GesG). 2012. V. 6 Schweigepflicht § 27 Ausnahmen, Absatz 3. Switzerland.
Anfang, S.A., and P.S. Appelbaum. 1996. Twenty years after Tarasoff: Reviewing the duty to protect. Harvard Review of Psychiatry 4(2): 67–76.
Appelbaum, P.S. 1985. Tarasoff and the clinician: Problems in fulfilling the duty to protect. The American Journal of Psychiatry 142(4): 425–429.
Appelbaum, P.S. 2002. Privacy in psychiatric treatment: Threats and responses. The American Journal of Psychiatry 159(11): 1809–1818.
Appelbaum, P.S., and A. Meisel. 1986. Therapists’ obligations to report their patients’ criminal acts. The Bulletin of the American Academy of Psychiatry and the Law 14(3): 221–230.
Birmingham, L., S. Wilson, and G. Adshead. 2006. Prison medicine: Ethics and equivalence. The British Journal of Psychiatry 188(January): 4–6.
Bonner, R., and L.D. Vandecreek. 2006. Ethical decision making for correctional mental health providers. Criminal Justice and Behavior 33(4): 542–564.
Bruggen, M.C., A. Eytan, B. Gravier, and B.S. Elger. 2013. Medical and legal professionals’ attitudes towards confidentiality and disclosure of clinical information in forensic settings: A survey using case vignettes. Medicine, Science and the Law 53(3): 132–148.
Bryman, A., and R.G. Burgess, eds. 1994. Analyzing qualitative data. London: Routledge.
Corbin, J., and A. Strauss. 2008. Basics of qualitative research. Los Angeles: Sage.
Council of Europe, Committee of Ministers. 1998. Recommendation No. R (98) 7 of the Committee of Ministers to Member States concerning the ethical and organizational aspects of health care in prison. https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=530914&SecMode=1&DocId=463258&Usage=2. Accessed November 10, 2013.
Elger, B.S. 2005. Attitudes of future lawyers and psychologists to the use of genetic testing for criminal behavior. Cambridge Quarterly of Healthcare Ethics 14(3): 329–345.
Elger, B.S. 2008. Towards equivalent health care of prisoners: European soft law and public health policy in Geneva. Journal of Public Health Policy 29(2): 192–206.
Elger, B.S. 2009a. Factors influencing attitudes towards medical confidentiality among Swiss physicians. Journal of Medical Ethics 35(8): 517–524.
Elger, B.S. 2009b. Violations of medical confidentiality: Opinions of primary care physicians. British Journal of General Practice 59(567): e344–e352.
Elger, B.S., V. Handtke, and T. Wangmo. Unpublished manuscript. Paternalistic breaches of confidentiality in prison: Mental health professionals’ practice, attitudes, and justifications.
Elger, B.S., and T.W. Harding. 2005. Avoidable breaches of confidentiality: A study among students of medicine and of law. Medical Education 39(3): 333–337.
Elger, B.S., V. Handtke, and T. Wangmo. In press. Informing patients about limits to confidentiality: A qualitative study in prisons. International Journal of Law and Psychiatry.
Eytan, A., D.M. Haller, H. Wolff, et al. 2011. Psychiatric symptoms, psychological distress and somatic comorbidity among remand prisoners in Switzerland. International Journal of Law Psychiatry 34(1): 13–19.
Fazel, S., and J. Baillargeon. 2011. The health of prisoners. The Lancet 377(9769): 956–965.
The Federal Assembly the Swiss Confederation. (2014) Swiss Criminal Code. http://www.admin.ch/ch/e/rs/311_0/ Accessed April 30, 2014.
Felthous, A.R. 2006. Warning A potential victim of A person’s dangerousness: Clinician’s duty or victim’s right? The Journal of the American Academy of Psychiatry and the Law 34(3): 338–348.
General Medical Council. 2009. Confidentiality. http://www.gmc-uk.org/static/documents/content/Confidentiality_-_English_0414.pdf. Accessed November 10, 2013.
IACFP, Practice Standards Committee. 2010. Standards for psychology services in jails, prisons, correctional facilities, and agencies. Criminal Justice and Behavior 37(7): 749–808.
Konrad, N. 2010. Ethical issues in forensic psychiatry in penal and other correctional facilities. Current Opinion in Psychiatry 23(5): 467–471.
Kottow, M.H. 1986. Medical confidentiality: An intransigent and absolute obligation. Journal of Medical Ethics 12(3): 117–122.
Margolin, J., and R. Mester. 2007. Inverted Tarasoff. The Israel Journal of Psychiatry and Related Sciences 44(1): 71–73.
Melamed, Y., E. Or, D. Rudinski, et al. 2011. Responsibility of the therapist for the patients’ actions (Tarasoff Rules): Position of the psychiatrists. The Israeli Journal of Psychiatry and Related Sciences 48(2): 107–110.
Mills, M.J., G. Sullivan, and S. Eth. 1987. Protecting third parties: A decade after Tarasoff. The American Journal of Psychiatry 144(1): 68–74.
Niveau, G. 2007. Relevance and limits of the principle of “equivalence of care” in prison medicine. Journal of Medical Ethics 33(10): 610–613.
Pinta, E.R. 2009. Decisions to breach confidentiality when prisoners report violations of institutional rules. The Journal of the American Academy of Psychiatry and the Law 37(2): 150–154.
Pinta, E.R. 2010. Tarasoff duties in prisons: Community standards with certain twists. The Psychiatric Quarterly 81(2): 177–182.
Pont, J., H. Stover, and H. Wolff. 2012. Dual loyalty in prison health care. American Journal of Public Health 102(3): 475–480.
Rodriguez, M.A., S.P. Wallace, N.H. Woolf, and C.M. Mangione. 2006. Mandatory reporting of elder abuse: Between a rock and a hard place. Annals of Family Medicine 4(5): 403–409.
Schutte, P. 1995. Forensic physicians and medical confidentiality: A brief summary. Journal of Clinical and Forensic Medicine 2(2): 85–87.
Silverman, D. 1993. Interpreting qualitative data: Methods for analysing talk, text and interaction. London: Sage.
Strauss, A.L., and J.M. Corbin. 1998. Basics of qualitative research: Techniques and procedures for developing grounded theory. Thousand Oaks, CA: Sage.
United Nations. 1982. Principles of medical ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment. http://www.un.org/documents/ga/res/37/a37r194.htm. Accessed November 10, 2013.
Wilper, A.P., S. Woolhandler, J.W. Boyd, et al. 2009. The health and health care of US prisoners: Results of A nationwide survey. American Journal of Public Health 99(4): 666–672.
World Psychiatric Association. 1996. Madrid declaration on ethical standards for psychiatric practice. http://www.wpanet.org/detail.php?section_id=5&content_id=48. Accessed November 10, 2013.
We thank all participants in the study for their time and commitment. We are grateful to A. Taberska, M. Ummel, and A. Eytan for their comments on the interview guide; V. Lauf, M. Ducotterd, C. Brueggen, and A. Taberska for their help with the interviews and transcriptions; and B. Gravier and A. Eytan for their general support.
Conflict of Interests
The authors declare that there is no conflict of interest.
The study was funded by the Käthe-Zingg-Schwichtenberg Fund of the Swiss Academy of Medical Sciences.
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Wangmo, T., Handtke, V. & Elger, B.S. Disclosure of Past Crimes: An Analysis of Mental Health Professionals’ Attitudes Towards Breaching Confidentiality. Bioethical Inquiry 11, 347–358 (2014). https://doi.org/10.1007/s11673-014-9546-z