Tarasoff v. confidentiality

The Tarasoff decision is discussed as a logical extension of evolving legal doctrine imposing a special duty on caretakers. The mental health professions are being held to a standard of negligence and perhaps even to a standard of strict liability. Tarasoff is viewed as a part of society's interest in using the information disclosed in confidential relationships as a means of social control. This in turn is seen as part of a disquieting trend to curtail First Amendment rights. The adversarial nature of the relationship between the 1974 Tarasoff decision and the constitutional rights of patients to privacy, confidentiality, and privilege is discussed. The author re-asserts: “As asepsis is to surgery, so is confidentiality to psychiatry” (Beigler, 1978, p. 255).     

The impact of Tarasoff on clinical practice

The clinical impact of Tarasoff (1976) has meant an increased emphasis on violence as a topic in treatment and a concern for therapists. This paper discusses the limits of confidentiality and the management of dangerous patients both before and after the landmark decision of Tarasoff. The existing research surveys on therapists' responses to Tarasoff are reviewed. Some of the clinical implications of recent court cases such as Jablonski are described. Recommendations for the management of threatening patients are made.     

Tarasoff and the Duty to Protect

Summary

The Tarasoff I and Tarasoff II cases were decided by the California Supreme Court in 1974 and 1976, respectively. These cases involved the murder of a young woman by her ex-boyfriend, who had been a patient at a University counseling center. The parents of the young woman sued, alleging negligence. Tarasoff I set forth a “duty to warn” on the part of psychotherapists. Upon rehearing in Tarasoff II, the decision was upheld but modified. The court ruled that when a therapist determines, or should have determined, that a patient presents a serious danger of violence to another, the therapist has a “duty to protect” that other person. In this article, we address subsequent cases that have arisen under the “duty to protect” doctrine, and analyze some of the legal issues that these cases have raised.     

The Counselor's “Duty to Warn”

In the wake of the Tarasoff case in California other state courts have interpreted the legality of a helping professional's duty to warn.     

The Tarasoff Warning and the Duty to Protect

Summary

Since the case of Tarasoff v. Regents of the University of California, mental health professionals have had an explicit legal duty to warn potential adult victims of violence. Subsequent case law expanded this standard to a broader duty-to-protect. Primary health care providers are increasingly treating psychiatric patients for whom the duty to protect is applicable. However, these providers are often unaware of the legal, ethical, and clinical issues involved. Assessment of violence risk should include demographic, psychiatric, and social dimensions. Interventions include notifying law enforcement authorities, potential victims, and possible use of psychiatric hospitalization to prevent aggressive behavior. The duty-to-protect as a standard-of-care has been applied to several other clinical situations, including impaired driving capacity, high-risk HIV behavior, and child sexual abuse. The article includes a step-by-step clinical protocol for evaluation and intervention in dangerous situations.     

Perceptions of liability for the negligent infliction of emotional distress to a bystander

This study examines factors that are part of the test for whether a plaintiff may recover damages due to the negligent infliction of emotional distress to a bystander. Subjects were 96 eligible jurors from two California counties. They were presented with a case vignette which carried one of the three elements for bystander recovery for emotional distress as outlined in the California case of Dillon v. Legg. Participants were more likely to believe a plaintiff had a right to sue for damages in cases in which (1) there is a close relationship between the bystander and a direct victim, and (2) the bystander is within the zone of physical danger. A plaintiff's sensory and contemporaneous perception of an accident did not significantly influence subjects' judgements.     

Counseling Clients Who Self‐Injure: Ethical Considerations

This article provides an overview of ethical considerations related to counseling clients who engage in self‐injurious behaviors. Ethical issues concerning client welfare, counselor competence, countertransference, referral and consultation, informed consent, and duty to protect are discussed in relation to the American Counseling Association's (1995) Code of Ethics and Standards of Practice. Implications and recommendations for counselors who work with clients who self‐injure are provided.     

The compossibility of impossibilities and ars obligatoria

In this paper I present a new approach to the so called ars obligatoria of the thirteenth and early fourteenth century. In standard medieval disputations an opponent attacks a thesis defended by the respondent. Some thirteenth-century authors distinguish two duties that the respondent has. First, he must grant whatever seems to be true. Second, he must grant whatever follows from what he has already granted. When the first duty is overridden by the specific duty to defend a false thesis (which is the main requirement of ars obligatoria), the second duty becomes the logical duty of keeping the set of one's answers consistent. A natural result of this model is the development of a concept of possibility based on the syntactic concept of formally correct inference, and not on any semantic considerations     

The Duty to Forgive Repentant Wrongdoers

Abstract

The purpose of this paper is to consider the question of whether we have a duty to forgive those who repent and apologize for the wrong they have done. I shall argue that we have a pro tanto duty to forgive repentant wrongdoers, and I shall propose and consider the norm of forgiveness. This norm states that if a wrongdoer repents and apologizes to a victim, then the victim has a duty to forgive the wrongdoer, other things being equal. That someone has a pro tanto duty to forgive a repentant wrongdoer means that he or she ought to forgive unless other considerations outweigh the norm of forgiveness. Furthermore, a distinction is made between what are termed ‘general considerations’ and ‘case‐relative considerations’, and it is argued that only after all the relevant considerations have been examined can it be determined whether there is a duty to forgive, all things considered.     

Kant's Criticism of Common Moral Rational Cognition

There is a consensus that Kant's aim in the Groundwork is to clarify, systematize and vindicate the common conception of morality. Philosophical theory hence serves a restorative function. It can strengthen agents' motivation, protect against self‐deception and correct misunderstandings produced by uncritical moral theory. In this paper, I argue that Kant also corrects the common perspective and that Kant's Groundwork shows in which senses the common perspective, even considered apart from its propensity to self‐deception and without being influenced by misleading theory, is deficient. Critical practical philosophy needs to set right agents about the stringency of some of their duties, and agents need to be made aware that they have certain other duties. I discuss how Kant corrects the common agent's notion of the stringency of the duty to not make false promises and how Kant corrects the common agent's notion of duties to self. I finally discuss how his critical practical philosophy can become popular and achieve the correction of the common perspective. I stress the role of education informed by philosophical theory for this and contrast it with so called ‘popular philosophy’.     

Inoculation against conspiracy theories: A consumer side approach to India's fake news problem

We attempt to replicate Roozenbeek and van der Linden's Western-based study in India by employing the Bad News Game, an online game, in which players take on the role of a misinformation tycoon. They are exposed to weakened doses of the strategies employed in conspiracy and fake news production with the aim to cognitively inoculate them against misinformation. The proliferation of inexpensive mobile connections coupled with a lack of digital literacy has resulted in a conspiratorial pandemic in developing countries like India. We test the game's impact on an Indian sample (n = 1002) using a within-subject design. We provide evidence of significant improvement in the ability of participants to identify the misinformation produced using Conspiracy, Impersonation, and to a lesser extent, the Discrediting technique, while observing greater truth discernment in correctly identifying true news. We also conduct sub-sample analyses. These findings have positive implications for methods that protect users from malignant online content.     

Avoiding Vice and Pursuing Virtue: Kant on Perfect Duties and ‘Prudential latitude’

To fulfill a perfect duty an agent must avoid vice, yet when an agent refrains from acting on a prohibited maxim she still must do something. I argue that the setting of morally required ends ought to consistently inform an agent's judgment regarding what is to be done beyond compliance with perfect, negative duties. Kant's assertion of a puzzling version of latitude of choice within his discussion of perfect duties motivates and complicates the case I make for a more expansive interpretation of the duty to pursue virtue.     

The Duty to Object

We have the duty to object to things that people say. If you report something that I take to be false, unwarranted, or harmful, I may be required to say as much. In this paper, I explore how to best understand the distinctively epistemic dimension of this duty. I begin by highlighting two central features of this duty that distinguish it from others, such as believing in accordance with the evidence or promise-keeping. In particular, I argue that whether we are obligated to object is directly influenced not only by what other relevant members of the conversational context or community do, but also by the social status of the agent in question. I then show that these features are shared by the duty to be charitable, and the similarities between these two duties point to a potentially deeper explanation: while promise-keeping is regarded as a classic perfect duty, charity is an imperfect one. I then argue that the duty to object can be modeled on a particular conception of imperfect duties, one that takes the duty to belong to communities and other collectives, rather than to individuals. I conclude by showing that this framework provides us with reason for accepting that there are imperfect epistemic duties in general.     

Ross and the particularism/generalism divide

W. D. Ross is commonly considered to be a generalist about prima facie duty but a particularist about absolute duty. That is, many philosophers hold that Ross accepts that there are true moral principles involving prima facie duty but denies that there are any true moral principles involving absolute duty. I agree with the former claim: Ross surely accepts prima facie moral principles. However, in this paper, I challenge the latter claim. Ross, I argue, is no more a particularist about absolute duty than a utilitarian or a Kantian is. While this conclusion is interesting in its own right, it is also important, I argue, because it prevents us from overlooking Ross's criterion of moral obligation and because it may have implications on the broader debate between particularists and generalists.     

Disquiet in the consulting room: everything/nothing that is said here is confidential

Writing from experiences in the consulting room in private practice in Australia, the author refers to the layered complexity of a conflict of ethical duty which has legal and social implications. The paper explores how the ethics that are congruent with creating a safe vas bene claustrum can be diametrically opposed to the social and legal structures and processes on which we all rely. It is suggested that within the vas, analysts and analysands engage in a shared process of emotionally connected, layered, symbolic thinking. Subpoenas directed at analysts are seeking concrete evidence that will stand up in court. The paper argues that this is a category error based on ignorance and misconceptions of what analytic work entails. The intrusion of a subpoena into the vas has the potential to cause havoc in the mental health and the lives of already vulnerable, possibly traumatized and isolated individuals. It can undermine a fundamental human right and undermine the profession of psychotherapy as a whole. The paper proposes that analysts have an ethical obligation to protect the work contained within the vas from these category errors and to educate other professionals as to why we cannot provide the kind of evidence that the courts require.     

Kant on Acting from Juridical Duty

ABSTRACT

A much debated passage in the Metaphysics of Morals often leads commentators to believe that it is not possible to act from juridical duty. On the one hand, Kant says that all lawgiving includes an incentive ‘which connects a ground to determining choice to this action subjectively with the representation of the law’ (MM: 218). On the other hand, he claims that juridical lawgiving ‘does not include the incentive of duty in the law’ (MM: 219). The first claim seems to entail that agents can perform a juridical duty for the sake of that duty; the second seems to entail that agents cannot perform a juridical duty for the sake of that duty. This paper shows that it is possible to reconcile both passages and to claim that one can act from juridical duty in Kant’s terms. First, it gives an account of what can be called the paradox of juridical duties. Second, it discusses briefly how responses to the paradox remain somewhat unsatisfactory. Finally, it clarifies how agents can act with no other incentive but the actual juridical duty without endangering the Kantian morality-law divide.     

Law,social science and the “brainwashing” exception to the first amendment

Litigation in the “cult wars” has shifted from “deprograming” cases to civil suits by ex-converts based on “brainwashing” claims, and to criminal defenses claiming incapacity due to cultic brainwashing. Early cases were decided on the basis of first amendment derivations barring judicial inquiries into conversion processes and religious authenticity. In 1988 the California Supreme Court carved out a narrow exception to this doctrine to be applied to circumstances where “coercive persuasion” is combined with concealment of a group's identity. The Court's opinion entailed characterizations of the process and consequences of brainwashing which are problematic from the standpoint of social science. Several key questions must be resolved before brainwashing theories can make a constructive contribution to litigation involving religious groups. These questions relate to broader issues involving the nature, causes and indicators of involuntariness, and the closely related problem of drawing the line or identifying the exact point on a continuum beyond which the means or intensity of indoctrination becomes incapacitating. Although the 1988 California decision did not resolve these issues, they were considered from 1988-91 by several courts making procedural rulings on the admissibility of “expert” testimony on brainwashing/psychologicd coercion. A concluding section relates this legal to the duality of ‘soft’ vs. ‘hard’ determinism in social science.     

Is Adhikāra good enough for ‘rights'?

The paper considers the question of whether ‘rights’ as we have it in modern Western thinking has an equivalence within the Indian framework of Dharma. Under Part I we look at purusārthas to see if the desired human goals imply rights by examining the tension between aspired ‘values’ and the ‘ought’ of duty. Next, a potential cognate in the term ’adhikāra’ is investigated via the derivation of a refined signification of ‘entitlements’, especially in the exegetical hermeneutics of the Mimāmsā. Finally, adhikāra's re‐emergence in the Bhagavadgitā is considered. We suggest that while the boundary is significantly extended, the Gitā too appears to be circumspect in opening up the discourse in the more abstract and absolute sense which the term ‘rights’ nowadays enjoys.     

Book Review

Arnheim, Rudolf, “Picasso's Guernica, The Genesis of a Painting,” University of California Press, Berkeley, California, 1962. Pp. 139, $8.50. Reviewed by Irving R. Stone     

KANT'S CONCEPTION OF MERIT

It is standard to attribute to Kant the view that actions from motives other than duty deserve no positive moral evaluation. I argue that the standard view is mistaken. Kant's account of merit in the Metaphysics of Morals shows that he believes actions not performed from duty can be meritorious. Moreover, the grounds for attributing merit to an action are different from those for attributing moral worth to it. This is significant because it shows both that his views are reasonably consistent with our ordinary views, and that he recognized a variety of purposes in evaluating actions, many of which are not furthered by determining whether they were motivated by duty.