Tarasoff and in North Carolina

By: A. Keith Mobley, Eugene Naughton

Mobley, A. K., & Naughton, E. (2011). Tarasoff and duty to protect in North Carolina. NC Perspectives, 4, 5-14.

Made available courtesy of North Carolina Counseling Association (NCCA): http://nccounselingassociation.org/publications/journal/

***© NCCA. Reprinted with permission. No further reproduction is authorized without written permission from NCCA. ***

***Note: Full text of article below NC Perspectives • Fall 2011• Volume 4

Tarasoff and Duty to Protect in North Carolina

A. Keith Mobley, PhD, LPC and Eugene Naughton, JD

A counselor’s duty to warn and protect third parties of threats made by their clients has been a complex, frightening, and confusing topic since the landmark Tarasoff case in 1976. Although the implications of this case has been interpreted by a variety of state courts and legislatures, the tension between a counselor’s ethical and legal re- sponsibilities creates consternation for many counselors in North Carolina. This arti- cle reviews the background and implications of the duty to warn concept to counsel- ors specifically in the state of North Carolina and provides both proactive and reac- tive suggestions for managing encounters with potentially violent clients.

Keywords: duty to warn, confidentiality, ethics

In 1976, the California Supreme Court and who do not fully understand the limits of handed down its landmark decision in Tarasoff confidentiality in their state (Walcott, Cerun- v. Regents of the University of California, and the dolo, & Beck, 2001), including those in North effects of that decision are still felt today Carolina. across the nation in both the legal and coun- The extensive implications of the Tarasoff seling professions. Because any case decided decision is further complicated by the fact that by a state or federal court can create legal rip- neither the North Carolina Court of Appeals ples that extend beyond the original jurisdic- (the highest court in the state) nor the state tion of the court, one state’s court could be legislature has squarely addressed the Tarasoff applied to another state’s cases. Conse- decision. Our intention with this article is to quently, courts, scholars, and mental health ease some of the confusion by revisiting what professionals have struggled to understand the the Tarasoff decision entails, how courts and implication of the case and its impact on the legislatures across the country digested Tara- daily practice of counseling in the years since soff, and how North Carolina has dealt with Tarasoff. This case was such an important one issues raised in that decision to date. We also that the crux of that decision – that a clinician hope to discuss the ethical and practical impli- has an overriding legal duty to break confiden- cations raised by Tarasoff and suggest how tiality when a client makes a viable threat counselors in North Carolina can avoid ethical against a third party – remains problematic for pitfalls that Tarasoff-like situations might raise many counselors who are untrained in the and ensure they are implementing best-

Dr. Keith Mobley is a Clinical Associate Professor and Clinic Director in the Department of Counseling and Educational Development at The University of North Carolina at Greensboro. He is both a Licensed Pro- fessional Counselor and Approved Clinical Supervisor. Eugene Naughton has a law degree and practiced in the DC Metro area for 12 years and is currently a child/adolescent clinician with Daymark Services in Lex- ington, NC. Correspondence concerning this article should be addressed to Dr. Keith Mobley at (336) 334- 5215 or at [email protected]

3 NC Perspectives • Fall 2011 • Volume 4 practices in a proactive fashion. Moore requested that the police commit Pod- The goal of this article is to help counsel- dar to a mental hospital for observation. Cam- ors in NC understand the history and the im- pus police stopped and questioned Poddar but plications of Tarasoff case in our state and to released him after he denied any violent inten- differentiate legal requirements from ethical tions. The police advised Poddar to stay away imperatives in similar situations to that case. from Tarasoff. Poddar had no further contact We first provide a background of the Tarasoff with the police or the University Health Ser- case, describe the implications of the case de- vices. Subsequently, Poddar began stalking cision across the nation, and then discuss the Tarasoff, and in October 1969, Poddar en- interpretation of the case in the state of North tered Tarasoff’s home and murdered her with Carolina. We conclude this article with sugges- a kitchen knife. He was convicted of second- tions of how a mental health professional in degree murder, a conviction later reduced to NC can be proactive in dealing with situations manslaughter and ultimately reversed on error. involving threats of harm made by a client and The victim’s parents brought suit against review steps one can engage in if risk of harm the University of California, the campus po- toward others is assessed. lice, and the University Health Service clini- cians. In their complaint, the Tarasoffs alleged The Tarasoff Decisions: Case that the University clinicians ―did in fact pre- and Analysis dict that Poddar would kill and were negligent in failing to warn‖ (Ref. 2, p. 345). The trial To most, the Tarasoff case is shorthand for court dismissed the suit, ruling that no law a simple ―duty to warn‖; however, it is much imposed a duty on a clinician to warn a third more. In fact, there are two Tarasoff decisions, party of a danger revealed during confidential and ―duty to warn‖ was only the first obliga- therapy. The Tarasoffs appealed and the case tion imposed on clinicians in California. As eventually worked its way to the California seen below, the California Supreme Court ex- Supreme Court. On December 23, 1974, the panded the obligations imposed on a clinician Court overturned the dismissal and remanded to a burdensome degree, with many other the case for trial against the University clini- courts following the California Supreme cians and police (Tarasoff v. Regents of the Univer- Court’s lead and applying the same obligations sity of California, 1974). In essence, the Court in their own states. imposed a new duty on clinicians to warn po- The facts are well known. In 1968, Prosen- tential victims of a threat posed by a client- jit Poddar, a graduate student at the University patient: of California, Berkeley, met fellow student Tatiana Tarasoff at a school dance. Poddar When a doctor or a psychotherapist, misinterpreted a casual kiss as evidence of a in the exercise of his professional skill serious relationship, and soon he became fix- and knowledge, determines, or should ated with Tarasoff, who rebuffed Poddar’s determine, that a warning is essential romantic overtures. Distraught, Poddar to avert danger arising from the medi- sought counseling at the University Health cal or psychological condition of his Services. During eight weeks of therapy, Pod- patient, he incurs a legal obligation to dar revealed to a staff psychologist, Dr. give that warning. (Ref .7, p. 555) Moore, that he intended to kill an unnamed woman who was readily identifiable as Tatiana Here, the Court assumed that a clinician Tarasoff. Moore consulted with supervisors could accurately discern if a threat was viable about a course of action and notified campus and foresee the harm. Thus, a clinician could police of the threat. In a letter to the police, be liable if he or she recognized the danger or

4 NC Perspectives • Fall 2011• Volume 4 should have recognized the danger and did Again, the Court required clinicians to accu- not warn the potential victim (Weinstock, rately discern the violent intent of their clients Vari, Leong, & Silva, 2006). and identify potential victims. How? The The Court’s decision (known as Tarasoff I) Court relied on clinicians to exercise a prompted strong responses from the mental ―reasonable degree of skill, knowledge, and health community. The American Psychiatric care ordinarily possessed and exercised by Association (APA) and other professional or- members of that professional specialty under ganizations filed with the Court an amicus curiae similar circumstances‖ (p. 349). brief (i.e., a petition from a third party in- How the Court arrived at its decision has tended to persuade or otherwise influence a been a matter of considerable debate, espe- court to act in a certain manner) and requested cially since the decision has broad implications a rehearing of the matter. In its brief, the APA for all mental health practitioners, regardless argued that clinicians could not accurately of the state in which they are licensed. Com- foresee future acts of violence, nor could they mentators have described the Court’s reason- guess all of the potential victims of the client- ing as ―convoluted‖ and ―opaque‖ (Herbert, patient. In addition, the APA argued that the 2002) and in disagreement with the basic ele- decision eroded the critical tenet of confiden- ments of law (i.e., civil, not criminal law) tiality, widely assumed to be a precondition (Walcott et al., 2001). for the development of a therapeutic rapport. At its heart, the Tarasoff II decision rests on In an unusual decision, the California Su- two fundamental ideas. First, the Court relied preme Court agreed to re-hear the case. In its on a quasi-Good Samaritan argument, holding second opinion (known as Tarasoff II, 1976), that it was good public policy for a clinician to the Court increased the scope of the clinician’s break confidentiality and warn a potential vic- liability, creating a ―duty to protect‖ in place tim where a client makes a viable threat of the narrower ―duty to warn.‖ Warning a against them. As Justice Matthew Torbriner potential victim was one way of fulfilling the famously wrote: new duty to protect, although not the exclu- sive means: Our current crowded and computer- ized society compels the interdepend- When a therapist determines, or pur- ence of its members. In this risk- suant to the standards of his profes- infested society we can hardly tolerate sion should determine, that his patient the further exposure to danger that presents a serious danger of violence would result from concealed knowl- to another, he incurs an obligation to edge of the therapist that his patient use reasonable care to protect the in- was lethal … (Tarasoff, 1976, p. 347- tended victim against such danger. 248). The discharge of this duty may require the therapist to take one or more vari- Second, the Court held that a clinician and ous steps, depending on the nature of client had a ―special‖ (i.e., legally binding) rela- the case. Thus, it may call for him to tionship that imposed duties outlined in the warn the intended victim or others Restatement 2d of : likely to apprise the victim of that danger, to notify the police or to take There is no duty to control the con- whatever other steps are reasonably duct of a third person as to prevent necessary under the circumstances him from causing physical harm to (Tarasoff v. Regents of the University of another unless … a special relation California, 1976, p. 340). exists between the actor and the third

5 NC Perspectives • Fall 2011 • Volume 4 person which imposes a duty upon cians, essentially calling on clinicians to more the actor to control the third person’s accurately predict violence and identify poten- conduct, or a special relation exists tial victims. For example, in Lipari v. Sears Roe- between the actor and the other which buck & Co. (1980), the U.S. District Court in gives the other the right of protect … Nebraska held that a clinician is to protect not (Restatement (Second) of Torts, § 315 just individuals but the general public from (a) (1965)). the danger posed by a patient-client. Here, Ulysses Cribbs was a patient-client in treat- Here, the Court acknowledged that Poddar ment at a Veterans Administration (VA) hos- was never under the clinician’s control or cus- pital. Cribbs purchased a shotgun from a Sears tody (in the sense of being committed) but catalogue, entered a nightclub and fired into a decided that the fact that a threat was made by crowd, killing Dennis Lipari. Lipari’s estate Poddar against Tarasoff was enough to trigger sued the VA hospital. During trial, it was re- the ―duty to control the conduct … or to vealed that Cribbs had never informed the warn of that conduct‖ (Tarasoff, 1976, p. 342). attending clinician of his murderous intent. The Court did not explain what information Although there were no specific threats com- was needed for the clinician to properly iden- municated, the U.S. District Court held that tity a potential victim (Herbert, 2002). How- the VA clinician could foresee the patient- ever, the decision made by this court resulted client’s violent tendencies, and thus had a duty in many states either (a) interpreting the Tara- to protect any member of society endangered soff ruling to relevant state-level cases, effec- by those tendencies. In its aftermath, this case tively creating additional precedent for clini- effectually brought a duty to warn to any men- cians to consider or (b) reactively creating stat- tal health practitioner in Nebraska. utes by state legislatures to explicitly address a Also, in Jablonski v. United States (1983), the mental health practitioners responsibilities re- U.S. Court of Appeals, Ninth Circuit, held lated to Tarasoff-type duties to warn and pro- that a patient’s general history of violence tect. As reviewed in the next section, the re- (absent specific threats) was sufficient for the sulting case and civil have much variabil- clinician to predict the danger the patient ity and is idiosyncratic to each state. posed to a particular victim. In this case, Jablonski was brought to a hospital after at- Tarasoff Across the Nation tempting to rape his girlfriend’s mother. The attending psychiatrist concluded that Jablonski Once a legal precedent is set in one juris- was a danger to others but that he did not diction, it is often a matter of time before meet the criteria for . similar or related circumstances allow an op- Less than a week after his release, Jablonski portunity for a judgment of its application killed his girlfriend. The Ninth Circuit Court may be applied to other jurisdictions. This was held that the hospital failed in its duty to pro- the case with Tarasoff. The Tarasoff II deci- tect the girlfriend, even though Jablonski did sion was authoritative only in California, i.e., not make a specific threat against her. The only courts in California were bound by the Court also held that the cursory meeting be- California Supreme Court’s ruling, but courts tween Jablonski and the psychiatrist was and legislatures in other jurisdictions have enough to create the special relationship from looked to that decision to guide and apply which the duty to protect arose, effectively their own case law and statutes. Since the 1976 reinforcing the outcome of the Lipari case decision, a number of courts across the coun- (1980). try have used the Tarasoff case as a model to Other jurisdictions have provided a more impose new responsibilities on their own clini- restrictive interpretation of the Tarasoff case.

6 NC Perspectives • Fall 2011• Volume 4 In Thompson v. County of Alameda (1980), for by warning the potential victim or appropriate example, the California Supreme Court held authorities or by hospitalizing the patient- that a clinician could not be liable for threats client (Walcott et al., 2001). made against a large, unidentified public Clearly, the multiple interpretations of the group. Here, James, a troubled youth, regu- original Tarasoff cases in various states has larly visited a clinician pursuant to court order. contributed to the confusion related to a clini- During therapy, James made general threats cian’s duty to warn and protect. Although we against his neighborhood, especially towards review the history of the Tarasoff implications the young children there. He did not threaten and relevant laws in North Carolina in the fol- any particular individual. Upon release from lowing section, the issue remains complex and custody, James killed a five-year-old boy. The often formidable to many clinicians. boy’s parents sued, arguing that the clinician had a duty to warn and protect children in the The Clinician’s Duty in North Carolina neighborhood. The California Supreme Court disagreed, holding that James’s threats were What, then, is the duty of the clinician in too broad to trigger the clinician’s duty to pro- North Carolina? Has North Carolina adopted tect. Similarly, in Leonard v. Iowa (1992), the a Tarasoff-like ―duty to protect‖ any foresee- Iowa Supreme Court refused to hold a clini- able victim of harm? The short answer is cian liable when a client made threats against ―No.‖ North Carolina has rejected the broad the general public. Other jurisdictions, includ- duties to warn and duty to protect any fore- ing Florida, Virginia, Mississippi, Texas, and seeable victims found in Tarasoff and is one of South Carolina, have explicitly or implicitly thirteen states that currently has no statute rejected the Tarasoff duty to protect (Wallcott defining this duty. In other words, the North et al., 2001). Carolina General Assembly has not passed In response to the plethora of conflicting laws that explicitly define or outline a mental court decisions related to a clinician’s duty to health care providers requirements to breach protect, many state legislatures have moved to confidentiality in these circumstances and has explicitly define the duties in law. To date, at rejected this duty in some rulings. That being least 23 states have codified the duty to pro- said, North Carolina does impose on the clini- tect. Five states (Idaho, Michigan, Montana, cian a duty to protect third parties in certain New Hampshire, and Virginia) have statutes narrow circumstances. Clinicians should be that appear to create a definite duty to warn or aware of these circumstances. protect. Other states (Arizona, Colorado, North Carolina’s statutes are silent as to a Delaware, Indiana, Kentucky, Louisiana, clinician’s duty to warn or protect, so it is up Maryland, Massachusetts, Nebraska, New Jer- to North Carolina courts to determine when a sey, Tennessee, and Utah) have statutes that clinician is required to break clinician-client impose a duty to protect providing certain confidentiality (as provided in North Carolina conditions are met, namely, the patient-client General Statute 8-53.8). It is to the courts that explicitly threatens an identifiable person or we now turn. the patient-client has a history of violence and It is apparent from case law that the North there is good reason to believe the patient- Carolina courts reject a Tarasoff-styled duty to client will commit serious violence. Two states warn. In Moye v. United States (1990), for exam- (Florida and Mississippi) have permissive stat- ple, the federal district court for North Caro- utes, providing that the clinician may break lina held that even if a clinician had a duty to confidentiality and warn or protect at their warn third parties about the danger posed by a discretion (Kachigan & Felthouse, 2004). patient-client, such a duty would not arise Typically, the clinician can satisfy the statute where the victim already knew the danger. In

7 NC Perspectives • Fall 2011 • Volume 4 this case, Moye had a history of mental disor- (i.e., the presiding judge ruled before the case ders and violence for which he received treat- went before a jury) in favor of Dr. Kilbride, ment at the Veterans Administration (VA) holding in part that the doctor had no duty to hospital. Doctors at the VA determined that warn Kathryn of Mark’s release. The North Moye was not benefitting from treatment, and Carolina Court of Appeals affirmed the lower eventually Moye transferred to a private facil- court’s holding, flatly rejecting a Tarasoff-styled ity. He was later discharged for non- duty to warn (pg. 692). compliance. Although they were aware of In contrast, North Carolina case law does Moye’s violent tendencies, Moye’s parents recognize a duty to protect, though this duty is took him into their home. Moye subsequently different in quality from the duty to protect murdered them. Their estate sued, alleging envisioned in Tarasoff. As noted above, the that the VA was negligent in its duty to warn California Supreme Court created a broad them of Moye’s violent tendencies. In trial, it duty to protect imposed on a clinician when a was revealed that Moye’s parents knew of his patient-client made a viable threat against a violence and that they refused to administer third party. North Carolina refines this duty by the psychiatric medicine prescribed him. The holding clinicians and other mental health federal district court for North Carolina re- professionals liable where the patient-client is jected the estate’s claim: ―[A]ssuming … [the under the clinician’s control. In Pangburn v. duty to warn] exist[s], the duty [does] not arise Saad (1985), Sheri Pangburn brought suit where the foreseeable victim [knows] of the against Dr. M. Saad and Cherry Hospital in danger associated with the patient Goldsboro for injuries she suffered at the …‖ (Walcott et al., citing Moye, p. 182). hands of her brother, Daniel Pangburn. The court in the 2002 Gregory v. Kilbride case Daniel had a long history of mental illness and was even more explicit. In this case, the estate violent behavior, and he had been committed of the patient and his wife brought suit for several times. In 1982, Daniel was involuntar- after the attending psychiatrist re- ily committed to Cherry Hospital. After con- fused to commit the patient. Mark Gregory finement for some period of time, Daniel’s had threatened to kill his wife Kathryn and attending psychiatrist, Dr. Saad, decided to himself during the 36 hours that led up to a release Daniel, all over the strenuous objec- psychiatric examination by defendant Dr. tions of the Pangburn family. Within 16 hours Kevin Kilbride. Fearing for Mark and Kath- of his release, Daniel assaulted Sheri Pangburn ryn’s safety, Mark’s father, Lloyd Davis Greg- with a knife, causing severe injury. Sheri sued ory, petitioned for Mark’s involuntary com- for damages suffered as a result of wrongful mitment. Mark was taken to Broughton Hos- release. Dr. Saad argued that he had no duty pital where he was evaluated by Dr. Kilbride. to Sheri since he had no contractual relation- Although Dr. Kilbridge determined that Mark ship with her. On review, the North Carolina suffered from adjustment disorder, he con- Court of Appeals disagreed, holding that so cluded that Mark did not meet the conditions long as a clinician has some control over a pa- for involuntary commitment. Mark was re- tient-client, the clinician owes a duty to fore- leased from the hospital. On the same day of seeable potential victims: his release, Mark shot and killed Kathryn be- fore turning the weapon on himself. Lloyd [W]here the course of treatment of a Davis Gregory brought suit in his capacity as mental patient involves an exercise of executor, alleging, among other things, that "control" over [the patient] by a physi- Dr. Kilbride breached a legal duty to warn cian who knows or should know that Kathryn of Mark’s dangerous condition. The the patient is likely to cause bodily trial court granted a partial directed verdict harm to others, an independent duty

8 NC Perspectives • Fall 2011• Volume 4 arises from that relationship and falls Hospital, Rivers was involved in several alter- upon the physician to exercise that cations, but with treatment his mood stabi- control with such reasonable care as lized. In April 1985, Rivers’ attending psychia- to prevent harm to others at the hands trist saw enough improvement to recommend of the patient (pg. 338). that Rivers was fit for trial. The psychiatrist discharged Rivers but also noted in the dis- This decision was confirmed in another charge papers that Rivers was still susceptible 1985 case, Currie v. US. Here, a psychiatrist at to incidents of violence. Upon discharge, Riv- the Veterans Administration (VA) hospital in ers was seen by a psychiatrist at Dorothea Dix Raleigh was advised that a patient-client, Leo- hospital, who also concluded that Rivers had a nard Avery, had threatened to blow up his propensity for violence. In August 1985, Riv- place of work, the IBM facility located in Re- ers killed Davis after a verbal exchange at an search Triangle Park. The psychiatrist spoke intersection in Goldsboro. Davis’s estate sued, with Avery and secured an agreement for a alleging that the state was negligent in releas- voluntary commitment, but Avery never ing Rivers from Cherry Hospital when it knew showed for commitment. In subsequent con- or should have known Rivers was violent and servations between the VA psychiatrist and posed a danger to others. The trial court Avery, Avery continued to make threats found the state liable. The Court of Appeals against IBM. The VA psychiatrist notified affirmed, holding that where a person is invol- IBM and law enforcement agencies of these untarily committed for a mental illness, the threats. VA psychiatrists and the medical staff institution has a duty to exercise control, and at IBM discussed involuntary commitment thus has a duty to protect third parties from proceedings but determined that Avery did harm caused by the patient-client (pg. 7). not qualify. Avery later entered the IBM facil- In summary, North Carolina does not have ity and killed an employee, Ralph Glenn. a Tarasoff-like duty to warn (either established Glenn’s estate sued, alleging in part that the by statute or through case law), but North VA was negligent for not seeking Avery’s in- Carolina case law does impose a duty to pro- voluntary commitment. On appeal, the U.S. tect third parties where a patient-client is un- Court of Appeals, Fourth Circuit, held for the der the clinician’s control in a mental health VA. Applying North Carolina law, the federal capacity. Furthermore, Licensed Professional court affirmed a Pangburn duty to protect Counselors in North Carolina do not have the when the patient-client is under a clinician’s authority to involuntarily commit or release control but also held that a clinician has no from commitment (i.e., control) a patient- duty to commit. client hospitalized for their propensity for vio- The Pangburn decision was affirmed again lence. Moreover, the lack of legal duty for a by the North Carolina Court of Appeals in clinician to break confidentiality and warn an 1995. In Davis v. North Carolina Department of intended recipient of violence by a patient- Human Resources, the estate of victim Phillip client must be distinguished from the ethical Davis brought suit against the North Carolina considerations for a clinician. The following Department of Human Resources after a pa- section will review those ethical implications tient released from Cherry Hospital killed that are consistent with extant case law in NC Davis. Dondiago Rivers had a history of hos- and those that contradict current practice. tile and aggressive behaviors and had been committed to state mental institutions on 11 Ethical Duties for Counselors in occasions. In 1984, Rivers was involuntarily North Carolina committed after being found unfit to stand trial for an assault charge. While in Cherry Although the interpretation of legal prece-

9 NC Perspectives • Fall 2011 • Volume 4 dents is often confusing and nuanced for pro- must be revealed. Counselors consult fessional counselors in North Carolina, it is with other professionals when in imperative that counselors understand their doubt as to the validity of an excep- expectations, requirements and allowances tion. from the legal perspective. As noted above, there is no statute or legal precedent that Because there is no legal requirement that would compel a counselor to disclose threats demands confidential information be revealed of violence made by their client to an intended in duty to warn scenarios in North Carolina victim in North Carolina, although the case (as evidenced in the preceding section), there law (i.e., law created by the courts interpreta- is a disconnect between what is expected le- tions) does impose the duty to warn/protect gally in North Carolina and what our ethical when the client is in the physical and legal codes require. Although counselors may be custody of the clinician (i.e., hospitalized). In justified ethically for breaking confidentiality fact, existing statute requires communication in cases of threats of violence from a client with clients to remain confidential. However, toward a third party, there is no legal require- the ethical principles upon which our profes- ment or expectation to do so. In other words, sion is based expects us to allow no harm to counselors are expected to act as a reasonable others, creating a legal and ethical mismatch professional would if they assess a client to be and a dilemma for professional counselors to violent or dangerous to others, but this may or navigate. How might professionals handle may not involve warning the potential victim situations in which we could prevent harm to if they are identifiable, based upon (a) the ab- another who is not our client? What of our sence of statute requiring us to do so, (b) the ethical obligation and the legal requirement statute deeming communications between a that we abide by our ethical code? counselor and client confidential and privi- The American Counseling Association leged, and (c) the contradictory ethical aspira- Ethical Codes (2005), which are adopted by tion to protect others. Therefore, the key the NC Board of Licensed Professional Coun- question is ―How do counselors fulfill their selors, has established ethical principles that ethical duties when no legal requirement ex- inform guidelines for duty to warn – auton- ists?‖ In the next section, we suggest steps omy, beneficence, nonmaleficence, justice, that consider both the ethical principles and fidelity, and veracity. Although all of these codes for our profession and the statutes in principles apply to duty to warn cases, the existence in North Carolina. most relevant to duty to warn issues are the autonomy of both the client and intended vic- Steps a Clinician in North Carolina Can tim and the principle of nonmalefience, which Take To Protect Themselves requires counselors to allow no harm to oth- ers. These have been translated into code in North Carolina has no statute to guide cli- B.2.a Danger and Legal Requirements (ACA, nicians in their duties to warn or protect third 2005): parties from patient-clients. The situation can be dire. ―The problem, of course, with a legal The general requirement that counsel- vacuum on so ubiquitous an issue is that the ors keep information confidential clinician is continuously in jeopardy: warn, and does not apply when disclosure is re- face breach-of-confidentiality exposure; keep quired to protect clients or identified silent, and risk a Tarasoff suit‖ (Herbert & others from serious and foreseeable Young, 2002, p. 280), or possibly a violent act harm or when legal requirements de- toward a third party. The clinician can look to mand that confidential information the courts, but case law is constantly evolving,

10 NC Perspectives • Fall 2011• Volume 4 and what is true today may not be true in six tions to confidentiality dated on the initial months. However, our ethical codes, princi- date of service in every client’s file. This ples, and standards of practice – as well as the statement is to be signed by the client and case law described above - can inform, guide, be dated on the first date of service. How- and even protect our practice to avoid such ever, this constitutes the minimum related vexing circumstances and perhaps even mini- to informed consent procedures and mize any conflicts between ethical imperatives North Carolina counselors should aspire and legal considerations. In this section, we to provide more. Informed consent must have synthesized and outlined suggested steps be considered across multiple dimensions: for mental health counselors to take in order it is both an event and an ongoing proc- to protect themselves from legal or ethical di- ess, it is both verbal and in writing, and it lemmas and remain therapeutic when dealing involves the rights and responsibilities of with circumstances of violent clients that may both the counselor and the client. Further- lead to intentional breaches of confidentiality. more, descriptions of the informed con- For clarity and assistance in prioritizing these sent process within the case notes and steps, we divide them into two categories, pro- signed copies of professional disclosure active and reactive (adapted from Borum & can further inform and protect the coun- Reddy, 2001; Costa & Altekruse, 1994). selor in duty to warn scenarios. Thorough and accurate informed consent is consid- Some proactive steps to take with every ered by these authors to be the strongest client include: and most critical of the proactive elements related to the tension among a counselor’s 1. Obtain informed consent. Counselors responsibilities to the client, the public, must provide thorough and accurate infor- the profession, the law, and to themselves. mation to their clients about clients’ rights and counselors’ responsibilities. Therefore, 2. Know your clients. Once a thorough and counselors must educate themselves on accurate presentation of informed consent the letter of the law regarding the require- is obtained from your clients, clinical as- ments and exceptions around client confi- sessment is a critical process. This assess- dentiality and privileged communication. ment is two-fold: historical and current. Because North Carolina assumes a nu- Historical factors that must be explored anced approach, making agreements with include, but are not limited to, the client’s the client about the counselor’s philoso- legal history, relationship history, present- phy, policy, and practice related to the ing problems, and/or skills related to cop- communication of threatening communi- ing with anger or controlling impulses. cations from clients toward third parties Current factors may be related to specific should be reviewed explicitly in advance. triggers or cues to violent behavior, con- In effect, informed consent is considered a current substance abuse, crossing interper- contractual agreement with a client, which sonal boundaries (e.g., excessive phone should include all potential exceptions to calls, unwelcomed visits), or preoccupa- confidentiality. In fact, the North Carolina tion with weapons. A comprehensive bi- Board for Licensed Professional Counsel- opsychosocial assessment can assist a cli- ors (NCBLPC) requires every Licensed nician in deciding whether the client’s pre- Professional Counselor to whom it grants senting concerns are within the scope of a license to include a copy of their Profes- competence, if the acuity of one’s caseload sional Disclosure Statement, which in- would allow a client with substantial risk cludes a section on the limits and excep-

11 NC Perspectives • Fall 2011 • Volume 4 for safety, or if a referral to another clini- gent, and objective decision-making. cian is appropriate and ethically tenable. Counselors must always be familiar with relevant statutes and follow emergency 3. Understand assessment procedures for procedures or policies within agencies (or violence. Although a thorough description develop them if needed). of the assessment of violence is beyond the scope of this article, an article by Hag- Reactive Steps gard-Grann (2007) is a useful resource. When counselors do assess clients to be 4. Develop contingency plans. Decide how dangerous to others, we have summarized you will respond before a scenario occurs. some relevant steps present in the literature How will you intervene with a client? and relevant to the expectations of all counsel- What resources will you access or leverage ors: (Costa & Altekruse, 1994). to help make your decision? While no one response pattern will be appropriate for 1. Remind the client. Again, informed con- every scenario regarding dangerousness, sent is not only an event but a process. consider different protocols for how you Although reminding a client of your agree- will respond to overt threats to others dur- ments related to breaching confidentiality ing a session with a client versus less clear related to their dangerousness may miti- clusters or patterns of symptoms that are gate further disclosure, we must uphold suggestive of violence, but less concrete. the principles of autonomy (allowing client You may want to write out a sample script to make their decisions, as they are capa- for reminding clients of your contract with ble), veracity (being truthful about how we them regarding exceptions to confidential- may respond), and fidelity (displaying loy- ity and practice it with other counselors. alty toward our clients). Of course in situa- Keeping a list of areas to assess for vio- tions where a client’s mental status is com- lence, paper and pencil measures that can promised, we aren’t able to legally re- lend to your decision-making, and sample obtain consent or remind them of our pre- ―Commitment to Treatment Statements‖ vious agreements and must proceed ac- may also be helpful in developing contin- cording to our clinical judgment. gencies (for more detailed information, see Rudd, Mandrusiak, & Joiner, 2006). Also, 2. Involve the client. In addition to remind- outlining a procedure for you to follow ing the client of the implications of their (e.g., assessment procedures, the order of disclosures or of the response to your risk interventions from least to most restric- assessment, engage the client as you are tive, numbers to call, directions to a mag- able in any part of your course of action, istrates office) if such a case were to arise as long as the client does not display cog- is suggested. nitive impairment and mental status ap- pears to be intact. Perhaps the motivation 5. Prepare for supervision and consultation. for their disclosure of intense emotions or To guard against isolation and to build violent thoughts, plans, or intentions is to professional resources, all practitioners are receive assistance or regain self-control. well-served by developing a network of Sometimes it is difficult for clinicians to other practitioners, supervisors, liability distinguish expressions of violence and insurance, professional association consul- desperation from intentions of violence. tation services, or even an attorney who Clients may be willing to sign a release of can assist in making comprehensive, dili- information for you to make a disclosure,

12 NC Perspectives • Fall 2011• Volume 4 make phone calls themselves, and/or notes include Description, Assessment, commit themselves to treatment or to Response, and Treatment Plan. Specifi- hospitalization. cally, the Description section might in- clude client statements, client behavior, 3. Develop a safety plan. When risk factors and other relevant circumstances, Assess- are vague or diffuse, clinicians may decide ment will document all of the relevant fac- to engage clients in developing a Commit- tors or measures used to determine risk ment to Treatment Statement or No- and justify action. Response should be Violence Contract, making arrangements inclusive of responses and actions of both to surrender weapons, or involve family clinician and client, including course of members. If the risk of violence appears action while Treatment Plan will include high or imminent, a plan for hospitaliza- long term needs beyond the immediate tion should be developed. crisis. DART formatting is less subjective and places more emphasis on objective 4. Use collaterals/key people. When imple- descriptions and clinician response. Other menting your plan, you may need to in- documentation should include relevant form supervisors, mental health authori- releases of information, clinical measures ties, legal counsel, or law enforcement. used, phone messages, and/or chronologi- cal description of contacts with third par- 5. Obtain supervision/consultation. As an ties, as applicable. extension of the proactive preparation of a network of other clinicians, consultation One important caveat is that counselors can serve to obtain objective input. In should never place themselves in harms way. anxiety-provoking or threatening situa- It is not within our scope of practice or legal tions, we may not consider all of the vari- responsibility to remain in dangerous situa- ables, possibilities, questions to ask, or tions with violent clients or to restrain, delay, courses of action, and colleagues and su- or otherwise block the egress of a client for pervisors can be valuable supports and whom we have safety concerns. We should, resources. however, enlist assistance to whatever degree is possible, beginning with the client and mov- 6. Document carefully. Thorough and objec- ing toward our colleagues, the family members tive documentation is critical to all clinical of the client, other mental health providers, practice but especially important in dealing supervisors, and ultimately to law enforce- with decisions to either maintain confiden- ment, as needed. tiality in cases of potential dangerousness or intentional breaches of confidentiality. Summary In other words, whether or not a clinician determines a duty to warn or protect ex- In this article, we have reviewed the land- ists, they must document the circum- mark Tarasoff cases and compared their impli- stances, the rationale or thought process cations to the existing statutes relevant to pro- that led to the clinical assessment, and all fessional counselors in NC. We highlighted of their courses of action and client re- that there are no statutes requiring counselors sponse. Although SOAP notes (subjective, to break disclosure when a client either verbal- objective, assessment, and plan) is a com- izes or poses a threat to another. However, mon format, we recommend a modified there are court decisions in our state that version that may better organize linearly would support a counselor’s attempts to pro- this type of clinical encounter. DART tect potential victims based upon their deci-

13 NC Perspectives • Fall 2011 • Volume 4 sion that a client is at high risk to commit vio- specific circumstances and develop the most lence. Furthermore, our ethical codes place appropriate course of action. priority over the safety and protection of oth- ers to the preservation of a violent client’s References confidentiality. In other words, counselors may be legally justified in either protecting the Costa, L., & Altekruse, M. (1994). Duty to confidentiality of a client who poses or verbal- warn guidelines for mental health counsel- izes a threat or in breaching this confidential- ors. Journal of Counseling and Development, 72, ity and warning a third party of such a threat. 346-350. The response depends on the diligence the Borum, R., & Reddy, M. (2001). Assessing counselor provides in systematically preparing violence risk in Tarasoff situations: A fact- for a situation in which they may choose to based model of inquiry. Behavioral Sciences disclose in order to warn and/or protect a and the Law, 19, 375-385. third party and their conscientiousness in Haggard-Grann, U. (2007). Assessing violence weighing and applying the ethical principles. If risk: A review and clinical recommenda- an ounce of prevention is indeed worth a tions. Journal of Counseling and Development, pound of cure, counselors will do well to en- 85, 294-301. sure each of these steps is integrated into their Rudd, D. M., Mandrusiak, M., & Joiner, T. E. counseling practice. However, access to legal (2006). The case against no-suicide con- counsel is always recommended to discuss tracts: The commitment to treatment

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