A COUNSELLOR'S DUTY TO WARN FORSEEABLE VICTIMS
OF A CLIENT WITH HIV/AIDS

George K. Bryce, BCACC legal counsel

Published in Vol. 9:1 of Insights (March 1997)

Introduction:
In the Spring 2002 issue of Insights, I discussed a counsellor duty to warn foreseeable victims of a client’s potential violence and proposed a series of questions a counsellor could use as checklist so that important factors were not overlooked before the counsellor decided whether or not that duty was activated in any particular circumstance.

Recently, I have been asked to discuss that checklist from the perspective of a counsellor with a client who is positive for the Human Immunodeficiency Virus (HIV) or has Acquired Immune Deficiency Syndrome (AIDS), and is having unprotected sexual relations or is sharing drug injection equipment. These are probably (hopefully) rare examples of when a counsellor would have to apply the general risk assessment framework from 2002.

As always, a counsellor has a separate, statutory duty to notify the authorities if the counsellor believes that a child may be at risk. Therefore, this article will assume that children are not the object of the HIV-positive client’s threat.

Restating the counsellor’s dilemma:
A counsellor’s duty to warn originates from a 1976 US case known as Tarasoff. While have been no reported Canadian cases that have expressly adopted the Tarasoff principles when a counselling client is threatening risky behaviour, given what the Canadian courts have said in non-HIV/AIDS cases, it is likely that these principles would apply to such cases involving HIV/AIDS clients.

As I noted in 2002, a breach of the counsellor’s duty of confidentiality can be justified if it is necessary to protect the safety of someone who may be seriously harmed by the client, even if that person is not specifically named. In general terms, a counsellor should breach a client’s confidence only when there is a real risk of serious and imminent harm or death to another identifiable person as a result of the inappropriate behaviour of a

Applying the 2002 checklist
A counsellor should not breach client confidentiality lightly. That decision must be taken seriously, weighing and assessing a number of risk factors.

The first step is for the counsellor to identify and properly characterize the threatened high-risk behaviour by considering both the seriousness of the threatened harm, and who may be the object of that harm. These issues were summarized in questions #1 to #7 of the 2002 checklist.

Unless the counsellor has obtained independent confirmation of the client’s health status (such as by reading a medical report, consulting with the client’s physician or seeing a prescription), the counsellor will have to give some consideration to the veracity of the client’s claim of HIV or AIDS. While it may be apparent from physical appearances that a client with AIDS is telling the truth, the same cannot be said if the client is only HIV positive or has only recently converted.

In the absence of medical confirmation, the counsellor will have to assess whether the client is telling the truth about his or her serostatus. For example, if the client openly discussed his or her status with the counsellor in earlier sessions prior to threatening harm to others, then the counsellor should be able to rely on that prior disclosure as truthful.

If the counsellor concludes that the client has HIV/AIDS, and that a third party is at risk because of the client’s threatened acts or omissions, the counsellor should then try to assess how likely is it that the client will act and when. Question #8 from 2002 considers the both the immediacy and the probably of the identified risk. In making this assessment, the counsellor should consider specific factors that make it more likely than not that the client will carry out the threat. There does not have to be a guarantee that the client will act on the threat; there need only be a “strong possibility” that it may take place. But the threat has to be likely; it cannot be a mere or simple possibility.

The HIV virus is not spread equally well by all routes of transmission, and there are many ways that transmission can be prevented so that the possibility of actual spread can be minimized. For example, if the client regularly uses a condom, then a threat to third parties may be minimal, even if the client refuses to disclose his serostatus to his or her partners.

Once the probability and timeliness factors have been considered, and if it appears more than likely that the client will act, it may be possible for the counsellor to determine if the potential victim (or an authority) has pre-existing knowledge of or is otherwise prepared to deal with the threat, such that it would not be necessary for the counsellor to then breach the duty of confidentiality. This possibility was canvassed in question #9.

If after considering these first nine questions, the counsellor decides that, in the interest of public safety, the duty to protect must supercede the duty of confidentiality, the counsellor should disclose information and in a fashion that minimizes the breach of client confidentiality. Therefore, it becomes necessary for the counsellor to consider how best to give the warning and who should be warned (see questions #10 to #14 for guidance).

If it is possible, an open and frank discussion with the HIV/AIDS client about the counsellor’s duty to warn may have therapeutic benefit, and thus strengthen rather than weaken the counsellor-client relationship. It may even be beneficial if the client was to participate in or take the lead in some sort of protective action under the counsellor’s supervision. In brief, the counsellor should also consider whether the client would consent to the warning.

When considering question #15, the counsellor should consider whether the warning being contemplated would likely reduce the identified risk of harm. In particular, disclosure should be made to a person or organization that is likely to be in a position to reduce the risk threatened by the HIV/AIDS client.

Documenting the assessment
A counsellor should document the answers to the 2002 checklist as that record should provide the counsellor with the basis for a defense if either the client or a third party was to later sue the counsellor for damages. The more concerned a counsellor is for the potential of harm to others, the more complete the risk assessment of the HIV/AIDS client and the documentation should be.

It is unlikely the court will expect the counsellor’s risk assessment to be accurate, because predicting the future is a notoriously difficult task. In a malpractice action, the court will focus on the quality and thoroughness of a counsellor’s assessment of a client’s risk to third parties, not whether the counsellor’s prediction was correct.

Further implications of PIPA
As I noted in a recent Insights article, section 18(1) of the new Personal Information Protection Act describes various circumstances when a counsellor may disclose a client’s personal information to third parties without consent. One circumstance is described in clause (k): “if there are reasonable grounds to believe that compelling circumstances exist that affect the health or safety of an individual.” While this wording does not require a counsellor to give a warning, it does provide a statutory basis for the counsellor to later claim that the warning was justified in the circumstances. Once the warning has been given, however, clause 18(1)(k) of PIPA adds a new requirement – the counsellor must then notify the client that a warning was given.

Concluding comments
A counsellor may have to breach client confidentiality so as to prevent an imminent risk of serious harm or death to an identifiable person or group that could be caused by the likely and reckless behaviour of a client with HIV/AIDS. This article discusses the general risk-assessment framework from my 2002 article and – by this example - tries to provide counsellors with guidance for those, hopefully rare, situations when they have to make this difficult decision. Rather than make this decision on their own, counsellors may want to discuss these issues with a peer if not also involve a medical practitioner. A consultation with a lawyer may also be well worth the investment.