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  • Mark Brafield

In the interests of disclosure

My profession is as a lawyer, so naturally I am interested in the disclosure of information. However, my practice as a hypnotherapist is deeply concerned with the confidential material which my clients discuss with me. A common cocktail party question, after 'can you make me cluck like a chicken', is 'do you ever have to reveal secrets people tell you ?'.

Well, since you ask ....

Confidentiality is an essential part of any effective medical treatment and is central to any sort of therapy. The discussion is most effective where the client is able to be completely honest, and that depends on feeling that what he or she says is treated in complete confidence.

From a legal point of view, revealing a client’s confidential information is a breach of their contract with the therapist, in relation to which a term as to confidentiality would be implied. If a client could prove that they had suffered loss as a result of disclosure (although it is not entirely easy to see how that might happen or be shown), then they could have a claim in negligence.

In addition, in a number of cases the courts are now moving towards a new tort of breach of privacy, following the principles of the Human Rights Act 1998, particularly Article 8, the right to respect for private and family life.

However, there are number of cases in which disclosure could be justified.

The first and most obvious of these is where the client agrees to the disclosure.

Next, disclosure could be justified where it would prevent, in the words of the guidelines of the British Psychological Society, the ‘risk of harm’ to another individual.

The leading court case on this subject (W v Egdell, 1990) suggested that in order to justify such disclosure, there must be (i) a real and serious risk of danger to the public, (ii) that the risk must be present and continuing, not in the past, (iii) the disclosure had to be to appropriate people with a legitimate interest in the matter (such as the Police or the Home Office) and (iv) the disclosure should be restricted to the minimum necessary to protect the public.

Putting this in deliberately silly terms, if a client told me that they had murdered someone, then I would not have duty to disclose, whereas if the client said that they were going to murder someone, and it was clear from the context that they really meant it, then I would certainly be entitled (and arguably have a duty) to tell the police. (I hasten to add that I have never been put in this situation in real life).

In a fascinating case in America (Tarasoff v The Regents of the University of California), a patient in therapy told his therapist that he was going to kill his former girlfriend. The therapist told the police who detained the patient, until he promised not to kill his girlfriend. Tragically, however, his promise was empty and he killed her when he was released. Crucially, the therapist had not warned the girlfriend, to whom it was decided that he owed a duty of care to protect her. This probably stretches the law that would apply in this country - American litigation is far less moderate than in this country, both in the way it is conducted and its outcomes - but it is a challenging case for us to think about.

Moving on, there are a number of instances in which the General Medical Council have advised that doctors have a positive duty to make disclosure, and the same probably applies to therapists. These include where there is evidence that a patient may have been abusing a child, and where the doctor has reason to believe that the patient is the victim of some sort of abuse, but lacks the capacity themselves to agree to disclosure.

Finally, a fascinating legal nugget. If the police come knocking on my door and demand to see my records, I don't have to disclose them unless to help identify a driver alleged to have committed a traffic offence, or if it is believed that someone has been involved in terrorist activities.

So I am pleased to say, as a result of all this, that if you have murdered someone, it is still OK to come and see me, but not if you have been caught speeding. Who said that the law is an ass ?

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