HIV and Duty to Warn for Counselors:

¶ … HIV and duty to warn for counselors: Does Tarasoff apply?," Stanard and Hazler confront the ethical dilemma posed by a counselor having knowledge that a patient is HIV positive but that the patient has not disclosed his status to his sexual partners. In the hypothetical scenario discussed in the article, the patient is a bisexual male who has sex with his wife and with male partners. The article does not make it clear whether the patient's wife is aware that he is bisexual and is having sex with multiple partners. Generally, information disclosed to a counselor is protected under confidentiality. However, in Tarasoff v. Regents of University of California, 1976, the Supreme Court held that a counselor who knew or should have known that a client posed a danger to another person had a duty to warn the intended victim (Stanard & Hazler, 1995). The question posed by this article is whether the risk that the patient will transmit HIV to one or more of his partners is the type of danger covered by the Tarasoff decision.

Discussion

People who are HIV positive can transmit HIV to others through sexual contact. Even safe sexual practices, while reducing the risk of transmission, do not eliminate the risk. Moreover, although there have been significant medical advances in the treatment of HIV / AIDS, the reality remains that for most people diagnosed as HIV positive who develop AIDS, the sentence is a death sentence. However, because consensual sexual partners are, or should be, aware of the risk of contracting HIV through unsafe sexual practices, there is an argument that they assume the risk of doing so when engaging in unsafe sexual practices. One ethical question presented is whether an assumed risk relieves the counselor of the duty to warn that was outlined in Tarasoff. Furthermore, the duty to warn has generally been interpreted to mean the duty to warn of an intentional harm. The second ethical question is whether an unintentional harm falls under the scope of Tarasoff. Finally, the duty to warn usually applies to direct threats. In the case of having unprotected sex with a person who is HIV positive, it is not certain that the partner will contract the disease. Does Tarasoff cover scenarios where harm is possible, but not certain? The authors seem to conclude that the threat in Tarasoff was sufficiently different from the knowledge that a patient is HIV positive to keep Tarasoff from applying in this scenario. The authors then suggest that each individual counselor look at the case specific information and consider five ethical principle, autonomy, nonmaleficence, beneficence, fidelity, and justice, before making a decision about disclosure (Stanard & Hazler, 1995).

Conclusion