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Guidelines for Practitioners: a Social Work Perspective on Discharging the Duty to Protect

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Guidelines for Practitioners: a Social Work Perspective on Discharging the Duty to Protect Guidelines for Practitioners: A Social Work Perspective on Discharging the Duty to Protect Karen Tapp, BSW, MSSW, JD, Assistant Professor [email protected] Darrell Payne, BSW, MSW, JD, Assistant Professor [email protected] Northern Kentucky University, Social Work Program Journal of Social Work Values and Ethics, Volume 8, Number 2 (2011) Copyright 2011, White Hat Communications This text may be freely shared among individuals, but it may not be republished in any medium without express written consent from the authors and advance notification of White Hat Communications. Abstract California 345, 1976). When a duty to protect issue arises in practice, social In situations in which a client is deemed to workers may experience ambivalence and present a serious risk of violence to another, uncertainty with respect to the need to a responsibility arises for the counselor to reconcile and integrate the professional use reasonable care to shield the anticipated ethics of confidentiality and legal mandates victim from such danger. Guidelines are of the duty to protect. This article reviews a provided to assist social workers in ethical brief history of the Tarasoff decision. The practice in “duty to protect” situations while Tarasoff duty to protect standard and the avoiding malpractice. ensuing uncertainty about the standard’s meaning and application based on Keywords: duty to protect, social work, inconsistent court opinions will be explored. ethical mental health practice, ethical Social workers’ ethical obligations are dilemma, client danger to third parties addressed as they relate to the duty to 1. Introduction protect standard. Finally, guidelines are set forth to assist social workers in ethical The Tarasoff doctrine directs that when the practice in duty to protect situations while therapist determines, or ought to determine, avoiding malpractice. Typically, in the that the client presents a serious danger of mental health arena, the duty to protect issue violence to a third party, an obligation arises arises either in a hospital/clinic setting or a “to exercise reasonable care to protect the clinician’s office. This article addresses foreseeable victim from that danger” duty to protect issues that arise in mental (Tarasoff v. Regents of the University of health treatment in a clinician’s office. Duty Journal of Social Work Values & Ethics, Fall 2011, Vol. 8, No. 2 – Page 2-1 to protect issues related to clients with Poddar stopped seeing Dr. Moore. In late communicable diseases, such as HIV or October 1969, Poddar traveled to Tarasoff’s AIDS, or with genetic conditions, are not home, stabbed her to death, and then called addressed. the police to report the killing. Poddar was arrested. Tarasoff’s parents brought suit 2. The Tarasoff Case and named the university health service and the campus police as defendants. The In autumn 1968, Prosenjit Poddar became consequent court decision on this legal acquainted with Tatiana Tarasoff at the action resulted in what is recognized as the University of California (Herbert, 2002), Tarasoff standard (Tarasoff v. Regents of and initiated romantic overtures as he the University of California 1976). believed she was his intended. Poddar asked for Tarasoff’s hand in marriage, and 3. The Tarasoff Standard and Tarasoff rejected the proposal. Fuming, Confusion that Followed Poddar returned home to his roommate and expressed a desire to kill Tarasoff (Tarasoff The standard is best articulated by the v. Regents of the University of California Tarasoff court. 1974). When a therapist determines, or Tarasoff left for Brazil in the summer of pursuant to the standards of his 1969. After her departure and upon a profession should determine, that his friend’s suggestion, Poddar accessed mental patient presents a serious danger of health counseling and assistance through the violence to another, he incurs an University. In late summer 1969, Poddar obligation to use reasonable care to was engaged in counseling with a protect the intended victim against psychologist, Dr. Lawrence Moore. Poddar such danger. In sum, the therapist revealed to Moore that he planned to murder owes a legal duty not only to his a girl when she returned from Brazil patient, but also to his patient’s (Herbert, 2002). would-be victim (Tarasoff v. Regents of the University of The psychologist sent a letter to the campus California 345, 1976). police chief and relayed his concern that Poddar had significant mental health Confusion arises in a number of areas. One problems and posed a danger. Subsequently, area of uncertainty stems from the fact that Poddar was picked up by campus police. there were two Tarasoff court rulings. However, the campus police became Succinctly stated, in the first Tarasoff ruling, convinced that he was lucid and no longer a in 1974, the California Supreme Court stated danger to Tarasoff. The officers obtained that therapists have a duty to warn Poddar’s assurance that he would maintain prospective victims (Tarasoff v. Regents of physical distance from Tatiana, and the University of California, 1974). A later subsequently released him from custody court decision and what is often called the (Tarasoff v. Regents of the University of Tarasoff II ruling, issued by the California California 1974). Supreme Court, instructs that therapists have a duty to protect prospective victims Journal of Social Work Values & Ethics, Fall 2011, Vol. 8, No. 2 – Page 2-2 (Tarasoff v. Regents of the University of disclosure statutes (legislation that attempted California, 1976). Thus, the legal standard to define Tarasoff’s duty to protect standard) in Tarasoff II moves beyond a counselor’s were passed in 23 states by 2004 (Kachigian duty to warn to encompass and mandate a & Felthous, 2004). Research reflects that duty to protect third parties if the client state courts have taken diverse approaches in presents a serious, foreseeable danger of interpreting their respective protective violence to another (Kagel & Kopels, 1994). disclosure statutes, and that only in a few cases did courts construe the statutes to limit Court decisions that followed Tarasoff II the duties owed to third parties (p. 272). were perplexing because of their Some indicate that there has been a inconsistency and unpredictability discernable trend to limit the scope of the (Kachigian & Felthous, 2004). For instance, clinician’s Tarasoff II duty to protect in both in Davis v. Lhim (1983), a patient released court cases and through the use of protective from a state hospital subsequently shot and disclosure state statutes, which explicitly killed his mother. Although there was no codify both the duty and how to discharge past record of violence, the plaintiff’s expert the duty (Walcott, Cerundolo, & Beck, witness described him as likely to engage in 2001). violence. The plaintiff’s sole piece of tangible proof was a notation made in a Conversely, some jurisdictions do not hospital record documenting that the patient mandate a duty to protect. For instance, had made threats toward his mother. This Florida’s statute is permissive and indicates documentation occurred two years prior to that a confidential communication between the mother’s death (Kermani & Drob, 1987). the licensed or certified mental health The court reasoned that if the treating worker and the patient or client is psychiatrist had reviewed past records, the confidential, and may be waived, when patient’s mother could have been identified “there is a clear and immediate probability as a foreseeable victim. The court adopted of physical harm to the patient or client, to the Tarasoff reasoning and held that a other individuals, or to society…” and the psychiatrist owes a duty of reasonable care licensed professional communicates the to a person who is foreseeably endangered information “only to the potential victim, by his patient. The court found the appropriate family member, or …other psychiatrist negligent for not reviewing a appropriate authorities” (Fla. Ann. Stat. previous record on the patient. This 491.0147, 1991). Florida’s Court of Appeal decision in Davis v. Lhim (1983) was later in Green v. Ross (1997) held that the reversed in Canon v. Thumudo (1988) on permissive language of this statute did not other grounds, specifically, with reasoning create an affirmative duty to warn, and as a by the Michigan Supreme Court that the result, no cause of action for failure to warn psychiatrist’s determination that the patient could be brought against a mental health should not be involuntarily hospitalized fell worker. In so holding, the court relied upon within a scope of immunity from tort a prior Florida appellate decision, Boynton v. liability (p. 698). Burglass (1991), which affirmed the dismissal of a plaintiff’s complaint for In the pursuit of professional clarity and the failure to state a cause of action against a hope for judicial predictability, protective psychiatrist under an alleged duty to warn. Journal of Social Work Values & Ethics, Fall 2011, Vol. 8, No. 2 – Page 2-3 The appellate court in Boynton v. Burglass, Because of these differences in state law, along with other factors, construed the clinicians are well-advised to be language of Fla. Stat. 455.2415 (pertaining knowledgeable about the relevant statutes to psychiatrists) to be permissive in that and case law in their states (Kachigian & psychiatrists “may disclose patient Felthous, 2004). Additionally, the advice communications….” Consequently, no and counsel of a local attorney who is duty to warn arose on which to base a cause familiar with the relevant duty to protect law of action against the psychiatrist. Thus, the is helpful and necessary in providing a full Florida statute permits but does not require contextual understanding of the law in one’s breaching of confidentiality to protect a third jurisdiction. party from harm. 4. Social Work Confidentiality The Texas Health and Safety Code language and Duty to Protect on duty to warn is similar to the Florida statute as the language is permissive Social workers are held to a “constellation allowing professional disclosure of of core values” (National Association of confidential information to warn a third Social Workers [NASW], 2008, preamble).
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