Week 6

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A Time to Tell? Legal Issues Regarding the Duty to Warn and Protect Nathaniel N. Ivers, Randall L. Perry

Abstract It is important that human services professionals, when faced with potential duty to warn or protect scenarios, understand their legal obligations. However, duty to warn legal statutes can be difficult to interpret and often vary across mental health professions and states. This article raises five issues associated with duty to warn and protect that, when understood, can help clarify human services professionals’ legal responsibilities in client harm situations. These five issues, when used in conjunction with extant professional ethical codes and ethical decision-making models, can improve human services professionals’ legal and ethical decision- making.

A Time to Tell? Legal Issues Regarding the Duty to Warn and Protect Recent mass killings in Arizona, Colorado, and Connecticut, perpetrated by individuals with severe mental health disorders, stress the responsibility human services professionals have not only to serve individuals with mental health disorders but also to warn and protect, when necessary, individuals in danger of being harmed by their clients. However, legal statutes and ethical codes that address exceptions to confidentiality for reporting potential client harm can be abstruse and often vary significantly across mental health professions and states (Quattrocchi & Schopp, 2005). These legal and ethical ambiguities and variations can confuse human services professionals, as well as leave them vulnerable to legal or ethical violations (Skovholt & Rivers, 2007). The purpose of this article is to raise legal issues that human services professionals should consider when balancing their duty to protect or warn with their obligation to maintain confidentiality. This objective is accomplished by (a) reviewing briefly the Tarasoff v. Regents of the University of California case and discussing its appellate history; (b) reviewing extant literature regarding decision-making models; and (c) presenting issues for human services professionals to consider in potential duty to warn or protect situations.

Nathaniel  N.  Ivers,  Department  of  Counseling,  Wake  Forest  University.  Randall  L.  Perry.  The   Law  Offices  of  Randall  L.  Perry,  PLLC.  Correspondence regarding this article should be addressed to [email protected].  

   

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Tarasoff v. Regents of the University of California Tarasoff v. Regents of the University of California, 17 Cal. 3d 425; 551 P.2d 334. (Cal. 1976) is a seminal court ruling that many mental health professions, including the human services profession, utilize to determine their legal responsibilities associated with potential client harm toward others (Skovholt & Rivers, 2007). The court, in its initial 1974 opinion in Tarasoff v. Regents of the University of California (1974), ruled that therapists have a duty not only to warn law enforcement officers of potential threats to others, but also to warn potential victims. The plaintiffs in the case, the parents of Tatiana Tarasoff, sued the University of California-Berkeley for negligence in the death of their daughter. Tatiana was killed by a fellow student, who, before murdering Tatiana, had disclosed to his psychotherapist that he had planned to kill her when she returned from vacation. Upon learning of his clients’ plans, the psychotherapist, under the direction of his supervisor, contacted the university police to have his client involuntarily committed to the inpatient unit of the hospital. After determining that he was stable and after he agreed to stay away from Tatiana, the police released the client from custody. When Tatiana returned to Berkeley, the client murdered her. The court ruled in favor of the plaintiffs, stating that the psychotherapist was negligent in his duty to warn the potential victim, Tatiana Tarasoff, of the impending threat to her life. In 1976, the Superior Court of California agreed to a rehearing of the 1974 Tarasoff case, and subsequently ruled that therapists have not only a duty to warn but a duty to protect. The court summary of the 1976 case stated the following: “when a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger” (Tarasoff, 1976). Most states have followed the example of California and have developed similar legal statutes as those rendered in both Tarasoff cases (Edwards, 2013). However, some states have given ambiguous rulings regarding Tarasoff and others, like Virginia, have rejected Tarasoff’s duty to warn altogether. A Lexis-Nexis Shepardizing analysis indicates that the Tarasoff ruling has been questioned once, criticized three times, received a positive analysis 65 times, and a concurring opinion 26 times. In essence, although the Tarasoff ruling in many cases is upheld or supported, in some cases it is not. Thus, human services professionals cannot rely solely on the Tarasoff

   

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rulings to determine the appropriate course of action when faced with client harm situations.

Ethical Codes and Decision-Making Models Professional standards, such as ethical codes, can provide additional

guidance to human services professionals who face uncertainty about their duty to warn. Statement 3 of the National Organization for Human Services ethical codes states (NOHS, 1996) that “human service professionals protect the client's right to privacy and confidentiality except when such confidentiality would cause harm to the client or others, when agency guidelines state otherwise, or under other stated conditions (e.g., local, state, or federal laws).” Other mental health professions, such as counseling, psychology, and social work, have similar codes of ethics, which communicate the importance of protecting confidentiality, but allow provisions for breaking confidentiality, such as when a client is in danger of harming self or others (American Counseling Association, 2005; American Psychological Association, 2010; National Association of Social Workers, 2008). Professional codes of ethics are helpful in that they provide specific standards of practice by which members of the profession should practice (Remley & Herlihy, 2010). However, as statement 3 of the NOHS ethical codes (1996) clearly indicates, ethical codes are superseded by local, state, and federal laws. Thus, having knowledge of applicable laws regarding duty to warn or to protect scenarios in a human services professional’s given state or specific profession is still essential (Skovholt, 2007; Wheeler & Bertram, 2012).

Moral, ethical, and legal decision-making models can also be applied to legal and ethical dilemmas. A common and influential decision-making model was proposed by Kitchner (1984). The moral decision-making model developed by Kitchner described five principles that human services professionals can consider when making decisions about how to proceed in difficult legal and ethical situations. These principles include beneficence (promote client welfare), non-maleficence (do no harm), autonomy (protect the freedom and independence of clients), justice (treat clients equitably), and fidelity (fulfill commitments and obligations). A sixth principle, veracity (being truthful to clients), was later added to Kitchener’s (1984) model (Skovholt & Rivers, 2007). Concerning duty to warn scenarios, each of these moral principles should be considered. As such, human services professionals may ask themselves the following questions: How will reporting this (potential harm to others) affect my client? Might it harm him or her?

   

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How will it promote his or her welfare? How might it help him or her? How might not reporting potentially harm my client or others? How might reporting it potentially help my client and others? How might reporting or not reporting affect the freedom of my client or others? Am I treating this client differently than I would treat other clients who may express similar intentions? How does reporting or not reporting contribute to my fulfilling commitments and obligations? How far does this duty to fulfill commitments and obligations extend? Am I being truthful and honest to my client by reporting or not reporting?

Another common decision-making model was proposed by Forester- Miller and Davis (1996). They developed this model specifically for professional counselors, but its guidelines can be applied to the human services profession as well. They integrated the works of multiple theorists, including Kitchner (1994), into a seven-step ethical decision-making model, which includes the following: identify the problem, apply professional codes of ethics, determine the nature and dimensions of the dilemma, generate potential courses of action, consider the potential consequences of all options and determine a course of actions, evaluate the selected course of action, and implement the course of action. Although each step in Forester-Miller and Davis’s (1996) ethical decision- making model is applicable to and often employed in duty to warn scenarios, of particular importance is step one: gathering information. Duty to warn situations are professional issues, ethical issues, clinical issues, as well as legal issues. Forester-Miller and Davis (1996) suggest that if a clinician determines that a dilemma is a legal one, the clinician should seek legal advice. The authors of this article agree with this suggestion. In addition, as a complement to step 1 of Forester-Miller and Davis’s ethical decision-making model, it would be beneficial for human services professionals to have a greater understanding of the issues that might influence their obligations regarding their duty to warn (Lawrence & Kurpius, 2000; Skovholt & Rivers, 2007). Hermann (2011, as cited in Gladding, 2013) proposed a legal decision-making model that has eight steps, seven of which are presented in question form. Gladding (2013) listed them as follows:

1. Is there a state statute or federal law related to the dilemma? 2. What is the spirit of the law? 3. Is there a binding case law? 4. Is there a persuasive case law? 5. Is there a workplace policy?

   

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6. What would a reasonable person do? 7. What would a colleague who has a similar education and experience

do? 8. Act reasonably based on the answers to the above questions (pp. 74-

75). Human services professionals, when confronted with potential duty to warn or protect dilemmas, would do well to follow these steps. However, as discussed in the following section, answers to these questions regarding duty to warn and protect are often complex. Thus, specific to duty to warn and protect scenarios, this article presents additional questions human services professionals can ask themselves to determine their legal responsibilities in potential client harm circumstances.

Legal Issues to Consider Regarding Duty to Warn and Protect For a human services professional or provider, the question “Do I have a duty to warn?” is not answered merely by the existence (or non-existence) of a state statute or case that creates either a general or specific duty to warn. Each statute is written differently, with different categories, such as which mental health providers are covered by the statute, what type of harm will trigger the duty, how specific must a potential victim be, is the duty to warn or protect deemed mandatory or permissive, and who must be warned and alerted of the danger.

To Whom Does the Duty to Warn Apply? Making a determination as to whether human services professionals have a

duty to warn requires that they evaluate whether the existence of a law is applicable to them and their profession. State laws, both those created by statutes as well as duties created by court rulings, often differ concerning who is covered under such laws. Some laws may be very broad and apply to many categories of providers. For example, the Massachusetts statute which creates a duty to warn, applies to licensed mental health professionals (Mass. Gen. Laws Ann. Ch. 123 §36B, 2013). The same statute and section further defines a licensed mental health professional as “any person who holds himself out to the general public as one providing mental health services and who is required pursuant to such practice to obtain a license from the commonwealth.” This would seem to indicate that the duty is applicable to psychiatrists, psychologists, social workers, and counselors, as well as any other mental health providers regulated and licensed by the state.

   

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Considering the fact that state mandated licensing to govern the practice of human services does not yet exist, professionals in the field may question their inclusion in statutes stated in this manner. Other states, such as Arizona, Maryland, and Ohio, have statutes that apply a duty to warn to the broad category of mental health professionals (National Conference of State Legislatures, 2013). When stated in this broad manner, it seems clearer that the statutes apply to human services professionals. When stated less broadly, it is important that each human services professional determine whether he or she falls within the defined categories of mental health professional. Conversely, some states have laws that are more specific concerning which professionals the duty to warn applies. California, for example, cites psychotherapists specifically in its statute, and refers to Section 1010 of the California Evidence Code for a definition of a psychotherapist (Cal. Civil Code §43.92, 2013). The Evidence Code lists 16 different groups of professionals who are considered psychotherapists, and who would therefore be subject to the duty to protect (Cal. Evidence Code §1010, 2013). Human services professionals, however, are not specifically listed in the evidence code. That being said, the evidence code also states that a “person rendering mental health treatment or counseling services” is subject to duty to protect laws (Cal. Evidence Code §1010, 2013). The statement is further defined and explicated in Section 6924 of the California Family Code (2013), which describes the provision of mental health or counseling services as those that are provided by governmental agencies, individuals or agencies contracted with a government agency to provide services, agencies that receives funding from a community united agency, runaway houses or crisis centers, and professional persons (Cal. Family Code § 6924, 2013). Professional persons are defined as the 16 professionals described in the evidence code, and, thus, do not include human services professionals. Although the California code provides clarity for some mental health professionals, it creates additional ambiguity for human services professionals. In particular, given that certain agencies are subject to duty to protect laws in California (e.g., crisis centers), and human services professionals may provide mental health services in these agencies, human services professionals, in certain circumstances, may indeed be subject to California’s duty to protect statute.

A similar statute in Illinois applies to therapists. The statute defines a therapist as “a psychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services or any other person

   

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not prohibited by law from providing such services or from holding himself out as a therapist if the recipient reasonably believes that such person is permitted to do so” (Ill. Rev. Stat. Ch. 740 §110/11, 2013). New York’s statute refers only to a psychiatrist or psychologist, in one part (N.Y. CLS Men. Hyg. §33.13, 2013). However, in another statute it defines the term mental health professional as “[a] physician, psychologist, registered nurse or licensed clinical social worker” (N.Y. CLS Men. Hyg. §9.46, 2013), which may indicate that the legislature did not intend to subject other mental health providers, including human services professionals, to the law. Nevertheless, human services professionals practicing in the aforementioned states, including California, Illinois, and New York, should consult with an appropriate authority in their state to determine if they are indeed exempted from the requirements of the statute. It is possible that the courts in these states have extended this duty beyond the groups explicitly listed in their statutes.

What Type of Harm Triggers the Duty? Virtually all statutes and cases that create a duty to warn or protect do so

for instances regarding a threat or risk of death or severe physical harm. This is the scenario that was present in the Tarasoff (1974) case—the patient had communicated his intent to kill a fellow student. The states that have adopted a duty to warn, either through a written statute or a court case decision, have stated that a threat of death or serious physical injury will trigger the duty to warn. What is less clear, however, is whether the duty to warn is triggered when the risk of harm to a third party is something other than death or serious physical injury. The most common scenario involves a human services professional whose client has a communicable disease, such as HIV or other sexually transmitted disease, but is unwilling to inform his or her sexual partner(s) of the disease or take precautions to prevent the risk of infection. In this situation, human services professionals should seek to determine if they are required to maintain the confidentiality of the client, or if the law allows (or even requires) that they inform identifiable third parties of the client’s infected status and the risks inherent in contact with them. Some states have addressed this issue through public health statutes that require all diagnoses of certain diseases be reported to the state’s department of public health or similar agencies. It is therefore important for human services professionals to be aware not only of their state’s statute regarding a duty to warn relevant to their profession, but also of other statutes that may impose upon the

   

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provider a duty to warn or report to the government, even if no such duty to warn otherwise exists.

A pertinent example of this can be found in North Carolina, which has not, as of the writing of this paper, enacted a statute imposing any duty upon human services professionals to warn third parties of an imminent risk of death (Gregory v. Kilbride, 2002). In Gregory v. Kilbride (2002) the North Carolina court explicitly held that no common law Tarasoff-like duty exists in North Carolina. However, Section 130A of the North Carolina General Statutes (2013) requires that any physician with a license to practice medicine, which would include psychiatrists, who has reason to believe that a patient has one of a number of specified communicable diseases (of which HIV is one), is required to report the disease to the state Commission for Public Health. As it currently reads, however, it does not appear that other mental health professionals are subject to that law. Although the law does not extend to human services professionals regarding a duty to warn a third party of a threat of physical harm, they may still have other legal or ethical obligations to warn or report of which it is important that they be aware. Furthermore, duty to warn and protect laws and the interpretation thereof are dynamic, which suggests that, although human services professionals may not currently be included under duty to warn statutes associated with specified communicable diseases, future written amendments to laws and court decisions could potentially extend that duty to them.

In addition to the threat of serious physical injury, human services professionals may also have a duty to warn or protect to prevent property damage. For example, the statutes of New Hampshire create, for certain mental health providers, including psychiatrists, psychologists, and other providers of mental health services, a duty to warn when there is “a serious threat of substantial damage to real property” (N.H. Rev. Stat. Ann. §§ 329:31, 329-B:29, 330-A:35, 2013). Human services professionals who assume that a duty to warn only applies to risks of physical harm may find themselves in violation of the law if they fail to act in circumstances in which duty to warn statutes include broader definitions of harm, such as the spread of dangerous and infectious diseases or damage to property.

Scope of the Victim Most duty to warn statutes require that the threat or risk of harm or injury

be made against either a specific person or a reasonably identifiable third party.

   

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Delaware, for example, requires that the risk of harm be against a clearly identified victim or victims before a duty to warn will be imposed upon a mental health professional (Del. Code Ann. Tit. 16 §§ 1211-1212 and 5402, 2013). Examples of other states that require the risk of harm be against a specific individual are Illinois, Maryland, and Minnesota (National Conference of State Legislatures, 2013).

Most states have adopted a slightly broader category, usually stated as being reasonably identifiable victim or victims. However, as one might anticipate, not all of the state statutes or courts have agreed on what reasonably identifiable means exactly. For example, if clients tell a mental health provider that they intend to kill a person they’ve been dating, that person may or may not be considered reasonably identifiable. Similarly, the effort which the provider is expected to make to identify the person may vary by state. This spawns some important questions: Is it enough for the provider to ask the client to reveal the identity of the person, or must human services professionals go further in their attempt to identify the person? Is it reasonable to require the provider to call the client’s parents and friends to see if they can help identify the potential target? Unfortunately, these are not questions that can be answered easily, and certainly not within the scope of this article. It is therefore important for the human services professionals in each state to understand how their state has defined reasonably identifiable, and what may be required of the provider in attempting such identification.

Mandatory vs. Permissive An important question to ask when determining whether a duty to warn or

protect exists is whether such duty is deemed to be mandatory or permissive. Under a mandatory duty rule, the human services professional must take steps required under the statute. If the human services professional determines that the other requirements of the law in their state, as this article has discussed herein, are applicable, then the provider will have a legal obligation to warn or protect. Failure to take the required steps can subject human services professionals to civil liability, and may endanger their ability to maintain their practice. Examples of mandatory duty laws can be found in California, Massachusetts, and Washington (National Conference of State Legislatures, 2013). In fact, the majority of states that have created a duty to warn have done so with a mandatory rubric (National Conference of State Legislatures, 2013).

   

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In contrast, a minority of states have created a more permissive, or discretionary duty to warn. (National Conference of State Legislatures (2013). Under these laws, the covered human services professionals may decide to breach their clients’ confidentiality and warn a third party, but the professionals are under no legal obligation to do so. The provider retains the discretion of whether or not to warn. Although the laws of these states are not identical, generally the laws provide protection for the provider, based on either decision. For the human services professionals who choose to maintain their clients’ confidentiality, the laws generally provide immunity from civil liability by any third party who suffers any harm or damages as a result of the provider’s decision not to warn. For providers who decide to breach client confidentiality to warn a third party, the laws provide protections to the providers from any legal or professional liability to their clients for the breach of confidentiality. A few of the states that have adopted such permissive duty laws are Florida, Illinois, and Oregon (National Conference of State Legislatures, 2013).

Whom Must the Provider Warn? Once human services professionals have determined that a duty to warn is

applicable in their situation, they must ensure that they fulfill their obligation and duty by informing or warning the proper persons. This may include the potential victim, their families, as well as law enforcement agencies. Virtually all states that have adopted a duty to warn statute that explicitly states whom the providers must warn require the providers to warn the identified potential victim. In some of these states, human services professionals may fulfill their legal duty by warning only the potential victim, and the provider is under no obligation to alert any law enforcement agencies. However, most states that require that the victim be warned also require the provider to alert appropriate law enforcement agencies of the threats made by their client. The provider may also have a duty to go beyond just warning the victim. The provider may also be under a duty to protect the victim, by ensuring that reasonable and proper steps are taken to protect the victim from the client. Many duty to warn statutes do not explicitly define to whom the provider must relay the threat of harm. In these states, human services professionals would be wise to look to the court cases in their state, to see if there are any cases in which the courts of that state have determined that the warnings made by providers were inadequate.

   

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Conclusion When clients express a desire to harm themselves or others, human

services professionals are often confronted with complex and sometimes conflicting moral, ethical, and legal responsibilities. Concerning the law and potential harm, the Tarasoff cases (1974, 1976) provide a precedent as well as some guidance for human services professionals to follow. In the Tarasoff cases (1974, 1976), the court ruled that mental health professionals have a responsibility to take reasonable measures to warn and protect people from harm. Although duty to warn statutes have been adopted in many states, variance among statutes exist and, in some cases, the Tarasoff rulings have not been upheld. The more human services professionals know about the law pertaining to their duty to warn and protect, the better equipped they will be to act legally and responsibly (Skovholt & Rivers, 2007; Wheeler & Bertram, 2012). To that end, in addition to determining whether one has a duty to warn, it is important that human services professionals ask the following: what type of harm will trigger a duty to warn or protect, how specific must the victim be, is my duty to warn mandatory or permissive, and who must be warned and alerted of the danger?

Although the authors believe these guidelines regarding duty to warn are a helpful supplement and complement to extant decision-making models, they are not comprehensive. Thus, it is essential that human services professionals research their own state’s laws, as well as consult with appropriate credentialing boards and seek legal counsel when necessary. Moreover, it also is important, because duty to warn and protect scenarios are not solely legal questions but also moral, professional, and ethical ones, that human services professionals consult professional ethical codes as well as agency policies and procedures for guidance on an appropriate course of action.

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American Psychological Association. (2010). Ethical principles of psychologists and code of conduct: Including 2010 amendments. Retrieved from http://www.apa.org/ethics/code/index.aspx?item=7

California Civil Code §43.92 (2013). California Evidence Code §1010 (2013). California Family Code § 6924 (2013). Delaware Code Ann. Title 16 §§ 1211-1212 and 5402 (2013).

   

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Edwards, G. (2013). Tarasoff, duty to warn laws, and suicide. International Review of Law and Economics, 34, 1-8. doi: 10.1016/j.irle.2012.10.004

Forester-Miller, H., & Davis, T. (1996). A practitioner's guide to ethical decision making. Retrieved from http://www.counseling.org/ resources/pracguide.htm

Gladding, S. T. (2013). Counseling: A comprehensive profession (7th ed.). Boston, MA: Pearson. Gregory v. Kilbride, 565 S.E.2d 685 (NC Ct. App. 2002). Hermann, M. A. (2011). Protect yourself, protect your students. VSCA Voice, 9-10. Illinois Revised. Statutes Chapter 740 §110/11 (2013). Kitchener, K. S. (1984). Intuition, critical evaluation and ethical principles: The foundation for

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N.H. Revised Statutes Ann. §§ 329:31, 329-B:29, and 330-A:35 (2013). N.Y. CLS Mental Hygiene §33.13 (2013). N.Y. CLS Mental Hygiene §9.46 (2013). North Carolina General Statutes §130A (2013). Quattrocchi, M. R., & Schopp, R. F. (2005). Tarasaurus rex: A standard of care that could not

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Remley, T. P., & Herlihy, B. (2010). Ethical, legal, and professional issues in counseling (3rd ed.). Boston, MA: Merrill.

Skovholt, T. M., & Rivers, D. A. (2007). Helping skills and strategies. Denver, CO: Love Publishing Company.

Tarasoff v. Regents of the University of California, 13 Cal. 3d 177; 529 P.2d 553. (Cal. 1974). Tarasoff v. Regents of the University of California, 17 Cal. 3d 425; 551 P.2d 334. (Cal. 1976). Wheeler, A. M., & Bertram, B. (2012). The counselor and the law: A guide to legal and ethical

practice (6th ed.). Alexandria, VA: American Counseling Association.

   

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