Duty to Warn and Protect

The duty to warn refers to a counselor’s obligation to warn identifiable victims. The duty to protect is a counselor’s duty to reveal confidential client information in the event that the counselor has reason to believe that a third party may be harmed. The understanding of a counselor’s duty to warn begins with acknowledgment of the difference between the ethical responsibility of confidentiality and the legal term of privileged communication. Confidentiality is a demonstration of respect bestowed on the client by the counselor wherein information between the two will not be divulged by the counselor. Privileged communication is a legal doctrine (also known as therapist-patient privilege) that declares client-counselor therapeutic communications are to be kept private by the counselor. The client, rather than the counselor, owns this legal privilege and generally, only the client has the right to release information from the relationship. Privileged communication is not available in all states and it is not absolute. An exception exists, for example, when a client threatens to harm him- or herself or others. The American Psychological Association’s and the American Counseling Association’s Code of Ethics recognize exceptions and note that counselors are not required to maintain confidentiality when clients pose a threat or risk to identifiable others.

The legal precedent for establishing a duty to warn and a duty to protect was set in the wrongful death case of Tarasoff v. Regents of the University of California. Tatiana Tarasoff was murdered by Prosenjit Poddar, a student from India enrolled at the University of California. Upon the rejection of Ms. Tarasoff’s affection, Mr. Poddar became distraught and sought counseling at the university student counseling center. During therapy, the psychologist working with Mr. Poddar became concerned that Mr. Poddar intended to harm Ms. Tarasoff. The psychologist, along with a psychiatrist, unsuccessfully attempted to have Mr. Poddar committed. The psychologist also advised the campus police of his concerns. The campus police questioned Mr. Poddar, but he assured them he would not harm Ms. Tarasoff and he was subsequently released. Mr. Poddar terminated therapy and eventually went to Ms. Tarasoff’s home, shot her with a pellet gun as she ran from the house, and ultimately killed her with a kitchen knife.

Ms. Tarasoff’s parents filed wrongful death suits against the university as well as the psychologist and the psychiatrist because of their negligence to warn Ms. Tarasoff of the imminent danger posed by Mr. Poddar. The defendants won in the lower court, but the case was appealed and the original ruling was overturned. In overruling the lower court in 1974, the California Supreme Court issued a ruling that established a duty for therapists to warn potential third-party victims. Moreover, the California Supreme Court extended therapists’ responsibility to take reasonable steps necessary to protect intended victims, thereby establishing duty to protect in the 1976 rehearing of the Tarasoff case. The court held that danger to the public supercedes the protective privilege of a therapeutic relationship.

The duty to warn and protect has been upheld in other states and has become the standard of practice for mental health professionals. The duty to protect continues, however, to be open for interpretation throughout the United States. In deciding whether duty to protect is present under the law, judges generally consider whether (a) there was a special relationship and the client communicated an intended threat directly to the therapist, (b) harmful action (such as severe injury, death, or psychological harm) was foreseeable and imminent, and (c) the victim was identifiable. Different interpretations in various jurisdictions can result in apparent inconsistencies. Although many cases have issued rulings consistent with Tarasoff, others have resulted in rulings that allow a cause of action to a “foreseeable” victim who may or may not have been identifiable by a therapist.

Application in the Context of Other Therapeutic Issues

The duty to warn and protect may arise in contexts other than threat of injury or homicide of identifiable victims. Counselors should be mindful of obligations to warn and protect against clients’ threats of danger to identifiable or foreseeable victims of (a) HIV/AIDS, (b) child abuse or neglect, (c) incest, and (d) battery. There are also reporting considerations regarding self-injury and abortion.

Mental health professionals performing an evaluation and developing a treatment plan may be at risk for malpractice litigation when reasonable care is not exercised to prevent harm to a third party. If, in the course of developing a diagnosis or treatment plan, a counselor becomes aware of a client’s physical threats to a third party, the counselor might have a duty to protect others from potential harm. An incorrect diagnosis would fall under this same guideline. For instance, if a client did not receive appropriate treatment because of an incorrect diagnosis, the client might follow through with hostile and harmful behavior. The condition of the special relationship associated with duty to protect seems to apply in both instances.

Guidelines

There is not a simple formula to determine when the duty to warn and the duty to protect will arise, as each case is different and statutes vary among states. Generally, counselors should (a) approach potentially dangerous clients with sensitivity, (b) attend to detail and standard of care in therapeutic interventions, and (c) apply a procedure for assessing dangerousness and record-keeping. In addition, past records should be reviewed to evaluate a client’s history and propensity for violence and for any other information that would give rise to a reasonable belief that the client will injure a third party. Pragmatically, counselors should obtain professional liability insurance.

Therapeutic Considerations

Additionally, there are considerable therapeutic considerations associated with duty to warn and protect. A primary concern is client well-being. If the client turns out not to be dangerous and the counselor was insensitive in forming an assessment, the client may lose the opportunity for therapeutic intervention for long-term progress. A second therapeutic consideration is client autonomy. For example, encouraging clients to develop coping skills such as anger management could potentially serve to facilitate client self-growth and ultimately decrease the client’s risk to society. A counselor has the therapeutic opportunity as well as the obligation to model socially-responsible behavior for a client who might threaten harm to others, even in a joking manner. Counselors should inform the client of the consequences of the client’s intent and the necessity of the counselor to protect others.

Steps to Follow

The following guidelines are intended to help counselors treat “potentially-dangerous” clients ethically while observing their legal obligations:

• Inform clients at the outset of and during the relationship of confidentiality limitations, and include these limitations in an informed consent document that is signed by both the counselor and the client.
• Formulate and enact steps to assess dangerousness, such as determining if the potential danger is imminent and whether a threat is to an identifiable or foreseeable victim. At a minimum, dangerousness assessment should include a history of violence (the most predictive factor), evaluation of current thoughts, and aggressive behaviors. Other risk factors include a lack of social support, mental incapacity, an organized or feasible plan for violence, and a history of substance abuse. Recognize that it is very difficult to assess homicidal intent.
• If the counselor determines imminent dangerousness, the next step is to notify the intended victim and required professionals (such as police or other authorities, Department of Health and Human Services, and 911 or any other emergency services), the necessity for whom is indicated by the case and/or the counselor’s professional judgment. If possible, the counselor should decide in consultation with another qualified mental health professional precisely who should be consulted to help prevent victimization.
• Therapeutically related identified steps for counselors to protect the public include (a) increasing both the number of therapy sessions and amount of telephone contact with the client, (b) referring the client for a medical evaluation, (c) teaching anger management skills or arranging for those to be taught in individual or group settings, (d) arranging for commitment to a hospital, and (e) developing a “no-harm” contract for the client and having the client sign the contract. These steps may vary in sequence and content, depending on the circumstance of the case.
• Document (a) the justification of the decision to disclose confidential client information; (b) consultations with any necessary professionals such as psychiatrists, attorneys, law enforcement officials; and (c) any actions taken.
• Track recommendations to be certain they were followed.

Client confidentiality is generally tempered by the counselor’s obligation to warn potential third-party victims. With case law varying among states, counselors must study and follow the evolving law in the state or states where they practice.

References:

1. American Counseling Association. (2005). ACA code of ethics [Online]. Available from https://www.counseling.org/resources/aca-code-of-ethics.pdf
2. American Psychological Association. (2002). Ethical Principles of Psychologists and Code of Conduct. American Psychologist, 57, 1060-1073.
3. DiMarco, M., & Zoline, S. S. (2004). Duty to warn in the context of HIV/AIDS-related psychotherapy: Decision making among psychologists. Counseling and Counseling Psychology Journal, 1(2), 68-85.
4. Fischer, L., & Sorenson, G. P. (1985). School law for counselors, psychologists, and social workers. New York: Longman.
5. Herlihy, B., & Sheeley, V. L. (1988). Counselor liability and the duty to warn: Selected cases, statutory trends, and implications for practice. Counselor Education and Supervision, 27(3), 203-215.
6. Simon, R. (2001). Psychiatry and the law. Washington, DC: American Psychiatric Press.
7. Stanard, R., & Hazier, R. (1995). Legal and ethical implications of HIV and duty to warn for counselors: Does Tarasoff apply? Journal of Counseling & Development, 73(4), 397—100.
8. Tarasoff v. Regents of the University of California, 118 Cal. Rptr. 129, 529 P.2d 533 (1974).
9. Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334 (1976).

See also:

• Counseling Psychology