While many places across the world begin to reopen with caution, returning to “normal life” during the pandemic is not a godsend for those suffering from a spate of mental health conditions or for victims of domestic abuse. UN Women has found that the pandemic has led to an “increase in gender-based violence, and warned that the pandemic will likely disproportionately affect women.” With anxiety surrounding the virus itself, along with unprecedented waves of lay-offs and corporate bankruptcies, social isolation, and inadequate community resources, mental health specialists and other care providers are taking additional efforts to screen patients for suicidal thoughts and suicide prevention techniques prevention. Therapy of course plays a major role in this process, and is already seeing a spike in demand over the previous months.

In light of these unfortunate circumstances, it is high time for revisiting Islamic guidance on the patient relationship in regards to mental health counselling. In Kutaiba Chaleby’s book, Forensic Psychiatry in Islamic Jurisprudence, one reads repeatedly about the brilliance of Islamic scholarship in anticipating broader society’s health needs, issuing legal rulings with compassion, and harmonizing different approaches to come to a ruling. In this article, we will discuss the Islamic perspective on mandatory duty-to-warn laws in therapy, also known as the Tarasoff rule, based on Chaleby’s research. 

A guiding concept in therapy is privilege, defined as the “patient’s right to hold in private or release any information that has been communicated to his physician.” The sacred aspect of communication between two individuals is held in earnest in the Qur’an, when Prophet Ya’qub tells Prophet Yusuf, “Oh my son, do not relate your vision to your brothers or they will contrive a plan against you”.[1] Unsurprisingly, it was found in a randomized controlled trial that individuals are 20% more likely to be willing to discuss sensitive issues after a reassurance of confidentiality.[2] 

In the 1960s, Tarasoff v. Regents of the University of California ruled that when aware of information that threatens physical harm to a third-party, mental health professionals are obliged to betray patient confidentiality in order to protect the intended victim.[3] The rule was codified on the heels of a case in which a patient suffering from schizophrenia informed his psychologist of his intention to kill an unnamed (but identifiable) woman. The psychologist informed campus authorities and the patient was detained for a short amount of time before being released. The intended victim and her family were never informed, and weeks later, the former patient killed her. The court famously declared, “Protective privilege ends when the public peril begins”, and under this rule the protection provided by privilege can (and must be, in some US states) revoked in exceptional circumstances to prevent public harm.[3]

In the United States, privilege is generally forfeited when there is 1) a report of child abuse; 2) involuntary hospitalization; 3) court order; 4) if the person’s mental status is in question with respect to litigation; and 5) for purposes of this article, to protect a third party.[4] In this case, one can argue that the psychiatrist must act in the public interest by warning the person who may be the intended victim by the patient. At first glance, this makes sense given that people with mental health conditions are up to five times more likely to be violent than the general populace.[5]

While the Tarasoff rules may be well-intended, an economic analysis found that “the mandatory duty-to-warn laws [caused] an increase in the homicide rate of .4, or 5 percent.”[2] As the authors note in the conclusion:

[Mandatory duty-to-warn laws] changed the incentives to the patient and the doctor such that the patient has an incentive to withhold homicidal tendencies, and the doctor has an incentive to not explore homicidal tendencies. In addition, these laws increase the liability to health professionals and incentivize those professionals to not treat the most at-risk patients; at the very least they make the current state of the law abundantly clear to the patient so as to suggest suppression of the most dangerous statements and leave the psychologist in liability-free ignorance of the true mental state of the patient.

Additionally, no consistent clinical guidelines on the rule’s application exist, with variations of application among states and individual healthcare providers.[6] There is the unintended and potential Catch-22 situation putting the provider at liability for breach of confidentiality and conversely at risk of civil liability for failure to protect a third party threatened by the victim.[6]

Islamic law takes a different approach, emphasizing confidentiality over the perceived ‘public interest’ and what could be misconstrued as such. It must first be mentioned that the nature of the doctor-patient relationship under Islamic law is one in which there is no clear demarcation between moral and legal duties. The physician is bound both by the professional and the moral, to the degree that Islamic law considers abandonment of a patient to be equal to a refusal of treatment and a sin in front of God (and could face worldly consequences, according to certain schools of jurisprudence). Likewise, Chaleby writes that as amanah (trust) and maintaining integrity is an obligation, a physician cannot be forced by law to break confidentiality, even by a judge.[7] Islamic law does not specify the particular instances in which breaking privilege is allowed, because the primary responsibility of disclosure is placed on the provider. Ibn Hajar stressed keeping confidentiality even in the face of pressure from the judge or ruler.[7] The moral code of Islam guides all professions, and under this framework the physician weighs relevant principles to determine if the situation warrants a breach of confidentiality.

Chaleby goes on to argue that mandatory duty-to-warn laws disrupt the relationship between the doctor and patient: 

…many patients do not make full disclosure to their therapist so that the therapist neither gets to know of any threat to a third party nor is able to try to dissuade the patient from carrying out the threat.[8]

In the shari’ah, a third-party cannot discharge the physician from maintaining confidentiality. From this, one understands that the relationship between the patient and provider in the shari’ah is sacrosanct, meant to support the provider in carrying out the best treatment to the highest degree possible. As more Muslims in the West enter the medical professions, further research needs to be done on Islamic ethics in the modern therapeutic setting and the benefits we can glean.

As we continue to live in the new normal of social distancing and face masks, it is important to remain cognizant of how the pandemic is shifting mental health needs and priorities, including the need to allow intimate details to be shared by the patient. We should not forget Islam’s universal and timeless wisdom in a secular age that divorces spirituality from our daily affairs. 

Works Cited: 

[1] Quran 12:5.
[2] Edwards, Griffin. “Doing Their Duty: An Empirical Analysis of the Unintended Effect of Tarasoff v. Regents on Homicidal Activity.” The Journal of Law and Economics, 2014, Vol. 57, No. 2, https://www.jstor.org/stable/10.1086/675668?seq=1.
[3] Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (Cal. 1976).
[4] Chaleby, Kutaibe. Forensic Psychiatry in Islamic Jurisprudence. International Institute of Islamic Thought, 2001, pg. 4.
[5] Swanson JW, Holzer CE 3rd, Ganju VK, Jono RT. Violence and psychiatric disorder in the community: evidence from the Epidemiologic Catchment Area surveys [published correction appears in Hosp Community Psychiatry 1991 Sep;42(9):954-5]. Hosp Community Psychiatry. 1990;41(7):761‐770. doi:10.1176/ps.41.7.761.
[6] https://doi.org/10.1176/appi.ajp-rj.2018.130402.
[7] ibid. pg. 9.
[8] ibid. pg. 109.

Photo Credit: Axel

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About the Authors:

Waqas Haque is an editor for Traversing Tradition. He is on leave from medical school to study public health and also obtained an M.Phil. from Cambridge University. He is broadly interested in tafsir, bioethics, drug development, and entrepreneurship. He enjoys frequenting the gym, the masjid, and halal food establishments.

Heraa Hashmi is the Marketing Director for Traversing Tradition. She is best known for her research project, Muslims Condemn. She is a graduate in Molecular, Cellular, and Developmental Biology and has also studied linguistics. Her interests include the Islamic sciences, cognitive linguistics, and bioethics.

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