Monday, January 28, 2013

Duty to Warn

Confidentiality is one of the pillars of therapy. If there were no expectation of confidentiality, people would be unlikely to be as honest about what's going on with them, as a result of shame/guilt, fear of judgment, or fear that someone else would find out what they said. Therefore, the law has taken steps to protect clients' right to confidentiality, with only a few notable exceptions. For example, therapists are "mandated reporters," meaning that they are required by law to notify the relevant authorities of any suspected cases of abuse or neglect of a child, elderly or disabled person.

Another exception to confidentiality that is more controversial and varies significantly from state to state is the so-called "duty to warn." Laws related to the duty to warn are based on legal precedent set in the case of Tarasoff v. The Regents of the University of California. The court decided (albeit by a narrow margin) that a therapist may be held liable and subject to civil suit if s/he has reason to believe that a client poses an imminent threat to another person and does not take steps to warn that person. In fact, the client in question did not tell his therapist at the University of California the name of the person he planned to kill (Tarasoff), but the court felt that the therapist would have been able to deduce that person's identity from what the client did say.

This decision understandably sent shock-waves through the mental health community: therapists could be held liable if a client posed a threat to someone, even if that someone was not clearly identified! Professional associations and legislative bodies were faced with the challenge of determining how best to respond to this landmark case. Because of the controversial nature of the decision, States have varied significantly in the resulting laws. Many States, including California (where the Tarasoff case took place), and Massachusetts (where I live) passed laws requiring mental health professionals to notify the police and intended victim of a threat (in other words, they established a "duty to warn"). Other states passed laws giving mental health professionals permission to warn, meaning that they could divulge information about a threat without fear of repercussions for violating confidentiality. Some States (such as Texas) only allow the therapist to warn the police (not the intended victim), and some leave it up to the clinical judgment of the therapist.

According to Herbert (2002), "At present, one knows what to do in only half of the jurisdictions in the United States — those that impose a duty to warn. Any 'permission' jurisdiction could, without warning, turn out to be a 'duty' jurisdiction, and in the one-quarter of the states that maintain a legal vacuum on the issue, one can only guess what to do" (p. 423).

Interestingly, New York's newly-passed gun-control law takes the duty to warn in a different direction: it mandates that therapists notify a state official if they believe a client poses a threat to self or others. The client would then be blocked from (legally) purchasing guns, and police would be able to confiscate any guns in the client's possession.

So, what are your thoughts on how therapists should respond to threats against someone's life? Should there be a "duty" to warn, simply "permission" to warn, or neither? Who should be warned: the police, the intended victim, or some other state official? What should the response be?


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