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Applying the Duty to Protect and Warn 

Applying the Duty to Protect and Warn
Chapter:
Applying the Duty to Protect and Warn
Author(s):

James L. Werth Jr.

and Jennifer Stroup

DOI:
10.1093/med:psych/9780199845491.003.0114
Page of

Subscriber: null; date: 12 December 2018

At some point in their careers, psychologists may be faced with a situation where they have to decide whether a client is a potential danger to someone else. To know how to proceed, these types of cases require the psychologist to accurately understand the American Psychological Association (APA, 2010) ethics code, the laws and regulations and court cases applicable in her or his jurisdiction, and the client’s intent and ability to actually put someone else’s well-being at risk (Werth, Welfel, & Benjamin, 2009). Unfortunately, many psychologists believe they know these things but are incorrect in their interpretations (Pabian, Welfel, & Beebe, 2009). This chapter highlights key considerations and provides additional resources. The chapter will not discuss possible harm to self because different issues apply in these cases.

APA Ethics Code

Many psychologists appear to believe that the APA (2010) ethics code requires that confidentiality be broken if the therapist believes (p. 600) the client may be at risk of harming himself or herself or someone else. However, this is inaccurate. The relevant portion of the ethics code is found in Standard 4—Privacy and Confidentiality, specifically number 4.05 (Disclosures):

(b) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to … (3) protect the client/patient, psychologist, or others from harm.

This section is interpreted as permitting but not requiring the psychologist to break confidentiality if the professional believes that the client may harm others. Because the section refers to the law, the code cannot be interpreted in isolation. However, the key point is that the APA ethics code itself does not mandate that confidentiality be broken.

We want to note that other professions have different language in their codes so psychologists working on multidisciplinary teams may find themselves collaborating with professionals who do have an ethical obligation to take some action if a client or patient is believed to be a possible harm to self or others. The course of action to be taken in these situations needs to be discussed in order to minimize the likelihood that any member of the team may feel caught between ethical requirements and team treatment planning.

Tarasoff v. Regents of the University of California (1976)

Perhaps the most famous, and yet misunderstood, case associated with mental health care is Tarasoff. Because of the common misinterpretations, we encourage readers to read the actual 1976 case itself, which can be found online. We believe that most of the confusion results from the fact that there were two Tarasoff cases, one decided in 1974 and then reheard and redecided in 1976 (Werth et al., 2009). The key difference between the two cases is that the California Supreme Court held in the first one that therapists have a “duty to warn,” whereas in the second case the Court modified the ruling to indicate that there was a “duty to protect.” The ruling of the 1976 case overrides the earlier decision so the final ruling of Tarasoff (1976, p. 340) was that:

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. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.

The justices clearly indicated that warning was but one of many possible ways that the therapist could intervene. This is important because if the psychologist believes that she has a duty to warn, then she will break confidentiality; however, if the psychologist understands that she has a duty to protect, then she can consider other options such as, but not limited to, hospitalization, increasing session frequency, adding other modalities such as family therapy, and referring to a psychiatrist. We emphasize this point because it is the foundation for the interpretation of subsequent cases in other states and resulting state statutes.

State Laws and Cases and Regulations

There is wide variation in the laws passed by state legislatures or the ways that state courts have ruled in cases involving potential harm to others as well as how psychology licensure boards have written regulations (Werth et al., 2009). As a result, we can only provide a broad overview of the issues here and otherwise refer the reader to her or his own state statutes and case law and regulations. State psychological associations can be good resources for information on requirements within the state, local psychologist-experts available for consultation, (p. 601) and attorneys who are familiar with mental health law in the state.

When examining case decisions or laws or regulations, psychologists will want to ensure they understand the key aspects and implications of the material. Because of our familiarity with the statute, we use Virginia as an example. However, we add that we are not attorneys and our commentary here should not be construed as legal advice. Rather, we are intending merely to highlight carefully how a psychologist may want to read a statute and the types of things that may need to be explored with a legal consultant.

The relevant Virginia law is § 54.1-2400.1. Mental health service providers; duty to protect third parties; immunity. Part A is a set of definitions. Although definitions are very important when attempting to interpret statutes (consider the example of how the definition of “child abuse” or “child neglect” can influence whether a report is made), we skip this section here for the sake of space. Section B is included in its entirety.

B. A mental health service provider has a duty to take precautions to protect third parties from violent behavior or other serious harm only when the client has orally, in writing, or via sign language, communicated to the provider a specific and immediate threat to cause serious bodily injury or death to an identified or readily identifiable person or persons, if the provider reasonably believes, or should believe according to the standards of his profession, that the client has the intent and ability to carry out that threat immediately or imminently. If the third party is a child, in addition to taking precautions to protect the child from the behaviors in the above types of threats, the provider also has a duty to take precautions to protect the child if the client threatens to engage in behaviors that would constitute physical abuse or sexual abuse as defined in § 18.2-67.10. The duty to protect does not attach unless the threat has been communicated to the provider by the threatening client while the provider is engaged in his professional duties.

The first thing to note is that both the title of the statute and the first line of Section B specifically state that there is a “duty to protect” not a “duty to warn.” Section C of the statute identifies those actions that would meet the protection requirement. We return to Section C shortly.

Section B continues by specifying that the client herself or himself must be the one making the statements to the therapist. This is not the case in every state, where reports by significant others of the client may be enough to warrant intervention. Note also that the communication can come via voice or writing or sign language. This has significant implications in this era of electronic communication where therapists may receive e-mails or text messages in addition to phone or video messages. Receiving information through any of these mechanisms could be enough to trigger intervention, which highlights how important it is to include information about non-face-to-face communication in informed consent documents—a point to which we return at the end of this entry.

Next, there is the requirement that the threat be “specific and immediate.” The statute does not define “specific” but does indicate that the threat would involve “serious bodily injury or death,” which means that in Virginia, the threat would not need to be that the client wants to “kill” someone but would include a larger number of actions, including beating up or hitting with a car. Furthermore, the potential victim needs to be “identified or readily identifiable,” meaning that the client would not need to give a specific name but could say “my boss” and this person would be identifiable through the initial paperwork where the client indicates her or his employer. In some states, a readily identifiable person could include someone who lives in a home or works in a building, so threats to structures may also warrant intervention. In terms of “immediate,” the statute itself does not provide a timeframe; however, there is a reference to the child abuse statute and in that law “immediate” is defined as within 24 hours. Thus, one possibility (but by no means the only one) is that an “immediate” threat of harm is an action that will take place within 24 hours.

The statute continues by focusing on whether “the provider reasonably believes, or should believe according to the standards of his (p. 602) profession, that the client has the intent and ability to carry out that threat immediately or imminently.” The issue of whether the provider believes or should believe refers to the professional standards. This can be interpreted as the standards of care for working with potentially dangerous individuals. The issue at hand is the ability to conduct an assessment of the risk for harm. There are instruments in the literature available for this, and there are lists of risk factors that should be considered when doing these assessments and we refer the reader to other sources for more information (see Werth et al., 2009). The key point is that psychologists need to know how to conduct these types of assessments and have consultants available, because consulting with others demonstrates that one is attempting to live up to the standards of the profession instead of relying on one’s own knowledge. According to the statute, this assessment needs to consider both the client’s intent and ability. One without the other is not sufficient, so the therapist must examine both factors and if both are present, then the duty to protect applies; however, if only one but not the other exists, then the statute does not apply even though some intervention may be warranted. We covered the immediate threat component in the preceding paragraph.

The final sentence is, as far as we can tell, idiosyncratic to Virginia. We are aware of no other statute that specifies the duty to protect only applies when the therapist is officially working. The statute does not specify what constitutes “professional duties,” but we could envision a case being made that if a psychologist is checking work e-mails, even over the weekend, then he or she is engaged in professional duties. On the other hand, running into a client while grocery shopping would not be part of one’s professional duties, but if a client says he plans on killing his wife when he gets home, we would find it difficult to defend a decision not to do something merely because the psychologist was not working and therefore the duty to protect statute did not apply.

With this analysis of Section B complete, we move to Section C, which specifies how the professional meets the duty to protect.

C. The duty set forth in subsection B is discharged by a mental health service provider who takes one or more of the following actions:

  1. 1. Seeks involuntary admission of the client under Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1 or Chapter 8 (§ 37.2-800 et seq.) of Title 37.2.

  2. 2. Makes reasonable attempts to warn the potential victims or the parent or guardian of the potential victim if the potential victim is under the age of 18.

  3. 3. Makes reasonable efforts to notify a law-enforcement official having jurisdiction in the client’s or potential victim’s place of residence or place of work, or place of work of the parent or guardian if the potential victim is under age 18, or both.

  4. 4. Takes steps reasonably available to the provider to prevent the client from using physical violence or other means of harm to others until the appropriate law-enforcement agency can be summoned and takes custody of the client.

  5. 5. Provides therapy or counseling to the client or patient in the session in which the threat has been communicated until the mental health service provider reasonably believes that the client no longer has the intent or the ability to carry out the threat.

The reader should first note that the introduction to the list says “takes one or more of the following actions” [emphasis added]. With this type of language, we believe it prudent for the therapist to consider all of the options provided and document why the ones that were implemented were selected and why each of the others was rejected. Otherwise, an argument could be made that if the therapist had done one of the other things, the bad result would not have happened.

It is very helpful to the psychologist that the legislature has listed the options because, as we will see later, Section D of the statute indicates that professionals cannot be held civilly liable for “Failing to take precautions other than those enumerated in subsection C to protect a potential third party victim from the client’s violent behavior.” Thus, as long as the psychologist demonstrates how she or he considered the applicability of the five listed interventions, others cannot claim that the harm would (p. 603) have been avoided if some other intervention had been attempted. The first three options—involuntary hospitalization, notifying the potential victim or guardians, and notifying law enforcement where the potential victim/guardians lives or works—are fairly common. Other states may include different types of hospitalization or include law enforcement where the potentially violent client lives or works; therefore, psychologists need to look at the requirements in their own state statutes.

The other two options provided may or may not be present in other areas. The fourth one seems to indicate that the therapist could keep talking to the client in her or his office or on the phone or via technology until law enforcement arrive to take the person into custody. The inclusion of the word “reasonably” means that the psychologist does not need to put herself or himself at risk or physically restrain the client from leaving the therapist’s presence.

The fifth one specifies that the psychologist can intervene in the session during which the threat is communicated until either the intent or ability of the client is eliminated. This would appear to mean that if the therapist intended to solely rely on this option, she or he may have to extend the length of the session until legitimately satisfied that the client no longer had intent or ability. Establishing a treatment plan designed to reduce intent or ability would not be satisfactory (whereas in other states the development of a plan may be enough). The definition of “session” is ambiguous in this era of electronic communication, so it is unclear whether texting back and forth would be considered a session.

Finally, Section D specifies that providers cannot be held civilly liable for:

  1. 1. Breaching confidentiality with the limited purpose of protecting third parties by communicating the threats described in subsection B made by his clients to potential third party victims or law-enforcement agencies or by taking any of the actions specified in subsection C.

  2. 2. Failing to predict, in the absence of a threat described in subsection B, that the client would cause the third party serious physical harm.

  3. 3. Failing to take precautions other than those enumerated in subsection C to protect a potential third party victim from the client’s violent behavior.

Thus, as long as psychologists act within the parameters outlined in the statute, they are protected from civil suits. However, note that included within Section D as well as in Section B is the idea of living up to the standard of care in terms of assessing for risk.

Informed Consent

Earlier we alluded to the importance of informed consent. Most discussions of ethical and legal issues highlight the importance of a good informed consent document, initial discussion at the outset of therapy, and seeing informed consent as a process that requires ongoing consideration instead of being restricted to the beginning of the first session. The other piece that must be emphasized is that this informed consent document and discussion must accurately reflect the ethics code, laws, regulations, and other limitations imposed by the therapist or agency. Thus, for a psychologist in Virginia, it would be inaccurate to indicate in writing or in a verbal review of the document that “As a psychologist, my ethics code and state law requires me to break confidentiality if you tell me you are going to kill a specific person.” Not only is this inaccurate as far as the APA (2010) ethics code is concerned, it also is an inaccurate summary of state law. A client who heard this, without further elaboration, would not be able to give truly informed consent to participate in therapy that involved discussion of possible violence because she or he has not been fully informed about what situations might lead to the breaking of confidentiality or what other interventions might be attempted and under what circumstances when a threat to others emerged.

Psychologists need to be able to accurately assess to what extent clients are a potential threat to others and know when these threats warrant intervention based on state-specific laws, court cases, and regulations. Significant misunderstanding of ethical, legal, and regulatory (p. 604) obligations exists and places psychologists at risk of not properly informing clients of limitations of confidentiality and improperly intervening when a threat is detected.

References and Readings

American Psychological Association. (2010). Ethical principles of psychologists and code of conduct. Retrieved February 2013, from www.apa.org/ethics/code/index.aspx

Code of Virginia. (2010). § 54.1-2400.1. Mental health service providers; duty to protect third parties; immunity. Retrieved February 2013, from leg1.state.va.us/cgi-bin/legp504.exe?000+cod+54.1-2400.1

Pabian, Y. L., Welfel, E., & Beebe, R. S. (2009). Psychologists’ knowledge of their states’ laws pertaining to Tarasoff-type situations. Professional Psychology: Research and Practice, 40, 8–14.Find this resource:

Tarasoff v. Regents of the University of California, 13 Cal.3d 117, 529 P.2d 553 (1974), vacated 17 Cal.3d 425, 551 P.2d 334 (1976).Find this resource:

    Werth, J. L., Jr., Welfel, E. R., & Benjamin, G. A. H. (Eds.). (2009). The duty to protect: Ethical, legal, and professional considerations for mental health professionals. Washington, DC: American Psychological Association.Find this resource:

      Related Topics

      Chapter 103, “American Psychological Association’s Ethical Principles”

      Chapter 106, “Minimizing Your Legal Liability Risk Following Adverse Events or Patient Threats”

      Chapter 128, “Understanding Fundamentals of the HIPAA Privacy Rule”