86 Fall 2008  Biofeedback Volume 36, Issue3, pp. 86–89 Biofeedback Keywords: duty, warn, protect, riskassessment, confidentiality Department ofPsychology, UtahStateUniversity, Logan, UT Sebastian “Seb” Striefel, PhD Duty toProtector Warn PROFESSIONAL ISSUES 6. 5. 4. 3. 2. 1. following: in others and violence.possible to clients the reference include would laws These their to duty their and violence, of probability the violence,assess potential to or how actual to familiar with the laws governing their activities in reference Health provider. care be health to need services biofeedback providing professionals care their kill to try or kill who clients course, of and, so, doing actually or another kill to abuse child intent of client suicide, of threat form or suicide client neglect, the and in professionals care health by world.the encountered problem recurring a Violencealso is communities,country,individual the our and in violence of need but read a newspaper to become aware society.One of the our prevalence in concern increasing ever an is Violence Introduction attorney canbeimportant. an and/or colleagues state.with to state from Consultation for, predict expected standards toassess of care that can vary in implementation ability dangerousness to self and others, the and deal with the same are and surrounding confidentiality issues to relevant able the Being with law. appropriately that deal to with related and precedents practices she court or the he which in state the of laws relevant the with care familiar be should health services related and mental providing practitioner biofeedback requirements Every discipline. legal to discipline and specific state to state the from vary and warn, or protect to duty a have professionals care health that specifying laws has state every virtually such, life. As of fact a is Violence

Communicable diseases reporting laws (note: the title of Duty toprotectorwarnlaws; and reporting aging the of exploitation or neglect, Abuse, persons disabled of exploitation or neglect, Abuse, Child abuseandneglectreportinglaws; Involuntary commitmentlaws; the law may varyfromstate tostate). laws; reporting laws; responsibilities as specified in the duty to protect and/or toprotect warn laws. duty the in professionals’ specified care as responsibilities health on primarily focus This will laws. article and 2004), (Striefel, standards and guidelines practice 2003),Biofeedback, and Psychophysiology Applied for (Association principles ethical in specified as others often to and served special those has to responsibilities one and that obligations means professional a Being pay. to willing are parties third some and clients some which for as services of form public the in skills and the knowledge special having to out themselves holding fessionals—are third parties of potential violence arising from a patient’s patient’s a from arising violence potential of parties third identifiable warn to duty a have therapists that concluded had breached their duty to exert reasonable care. The court defendants the that agreed Court Supreme California The Tarasoff.Ms. to issued been have should warning a least at that arguing university, the sued parents The Tarasoff. Ms. killed later, Poddar months Two destroyed. be police the with contact of records all that requested supervisor The Dr. Moore’s observation. and harmless, was for Poddar that decided institution police an to confined have Poddar to police the contacted psychotherapist, the Moore, girlfriend,his Tatianakill to Tarasoff.intended he Dr.that his informed Poddar) (Prosenjit psychotherapist at the University of patient California in Berkeley a case, that In later.years 6½ some Court Supreme California the in up ended that litigation in resulted 1969 in California in case warn to Tarasoff example,the states. court duty For other in laws the protect and deliberating modifying in in and states used other is in cases that precedent often a cases such as filed, serve was case the the court in the Although only which binding laws. in usually state protect are case and court a warn of findings to duty the of requirements the limited and/or extended have that cases court numerous are there addition, In 1996). (Smith, state or law warn of to that duty protect on the actual based state to state from varies protect and warn to duty specific The History andOrigin elh ae rfsinl—y ite f en pro- being of virtue professionals—by care Health ©Association for Applied Psychophysiology&Biofeedback www.aapb.org Striefel threats. That court case resulted in a proliferation of of another person where information exists to indicate that duty to warn and protect laws in California and across such a possibility is likely). In any case, confidentiality the country, with each state creating its own version of issues are raised that should be considered by therapists duties and limitations. See Gellerman and Suddath (2005) in devising their limits of confidentiality and disclosure or http://www.uky.edu/Classes/PHI/305.002/conf.htm for forms and in conducting the client informed consent more information on the case. process. Clients have a right to know that confidential information might be disclosed in certain situations and Duty to Protect or Warn what those situations are (Striefel, 2003, 2004). Breaching Virtually every state has a duty to protect or warn law confidentiality is acceptable in certain situations provided that specifies the duties of health care professionals from relevant rules are followed. Following the rules also helps specific disciplines with regard to their duty in reference to protect the provider against sanctions. The harm from potential violence perpetrated by their patients/clients. The failing to disclose needs to outweigh the risk of breaching duty to warn and protect laws generally apply to those from confidentiality (http://www.uky.edu/Classes/PHI/305.002/ the mental health professions, including but not limited to conf.htm). Knowing the laws and court precedents of the psychology, psychiatry, social work, licensed professional state in which one practices should help the practitioner counselors, marriage and family therapists, substance abuse develop a reasonable informed consent process including counselors, and psychiatric nurses. It may well also apply the limits of confidentiality. to other physicians who treat mental health problems (e.g., The California Supreme Court imposed a duty on mental the Utah Mental Health Professional Practice Act, 1994, also health professionals “to take reasonable steps to prevent includes physicians, surgeons, and osteopathic physicians a patient whom they knew or should have known was who provide mental health services). Child abuse and mentally disturbed and dangerous from harming anyone” neglect laws apply to all health care professionals, as well as (La Fond, 1996, p. 224). Thus, a second concern is raised others, such as teachers. Usually the child abuse and neglect having to do with mental health professionals’ being able laws are separate from the other duty to warn and neglect to correctly diagnose mental disturbance and to assess statutes but may well be referenced in both the specific whether, and the degree to which, a specific individual is discipline licensing law and in the state’s mental health dangerous to self or others. Only by so doing can others practice act (Utah Mental Health Professional Practice Act, be protected because violence by the patient is prevented, 1994). at least to the degree reasonable for qualified professionals. The title of the law may refer to “duty to protect,” “duty Failure to prevent harm to others when “one should have to warn,” or “duty to warn and protect.” Regardless of title, known” can result in a negligence lawsuit and all that goes the intent of the laws is to describe the duty of specific health with that: stress, financial burden, loss of reputation, and so care providers to take reasonable steps to protect potential forth. Some state laws have immunity clauses that protect victims from dangerous patients/clients (Smith, 1996). The professionals against some kinds of liability for failing to steps may include a duty to warn potential victims, a duty to predict and prevent harm (La Fond, 1996). There is little hospitalize or otherwise remove the patient so the intended empirical evidence that mental health professionals can violence is not possible, or it may take some other form accurately predict dangerousness. specific to a specific state law (Smith, 1996). Civil commitment laws in many states are an outgrowth of the Tarasoff decision and were designed to remove dangerous General Requirements people so they cannot harm even unidentifiable members The requirements of these laws change frequently, but some of the public (La Fond, 1996). Involuntary hospitalization generalizations are possible. The core component of all also raises liability issues if the involuntarily hospitalized these laws is that specific practitioners must take reasonable patient is not provided with adequate treatment to promote steps, which often includes warning the intended victim or reasonable chances of recovery. Wrongful commitment the police if there is a significant risk of physical injury to lawsuits are also becoming more common. Thankfully, most an identifiable victim (Smith, 1996). All such laws raise state laws have immunity clauses protecting professionals confidentiality issues. Some of the laws try to limit therapists’ against such lawsuits except for extreme cases of negligence Biofeedback  Fall responsibilities to divulge confidential information. Yet it or abuse. is not an uncommon expectation or requirement of law Evaluation of homicidal ideation is a routine part of a for confidentiality to be broken when the greater good of mental status examination (Gellerman & Suddath, 2005). society will be served (e.g., preventing the death or injury One could even argue that it is a part of the expected

87 Duty to Protect or Warn

standard of care. An evaluation of dangerousness includes 2. The Alaska Supreme Court ruled that a health care not only asking about violent fantasies but also asking about provider’s special relationship with his or her patients physical and sexual content (Gellerman & Suddath, 2005). In creates a duty to protect the patient from unreasonable like manner, suicidal risk is also an expected part of a mental risk of harm, including the foreseeablity of danger health examination. Such evaluations may well serve as the posed by other patients (http://www.state.ak.us/courts/ trigger for a duty to warn and protect identifiable others sp.htm). (Gellerman & Suddath, 2005) or even the responsibility to 3. The Kansas Appellate Court ruled that therapists need not have the individual client/patient hospitalized voluntarily or render a perfect performance in predicting dangerousness involuntarily. but must exercise a reasonable degree of skill, knowledge, It must be remembered that violent fantasies are not and care equivalent to that ordinarily possessed and always an indication that violent behavior will follow exercised by members of the discipline under similar (Gellerman & Suddath, 2005). After all, many normal circumstances (http://www.ksbsrb.org/dutytowarn.html). people have violent fantasies that are never acted out. Note that the key in Kansas is consultation to ensure that Better predictors than fantasies alone are the quality of the one is as competent in carrying out the duty to warn and fantasies, the preoccupation with them, the level of planning protect as are one’s colleagues. and detail, and a history of past violent behavior (Gellerman 4. The Texas courts have declined to impose a common & Suddath, 2005). Other factors to consider include loss law duty on mental health professionals to warn third of relationships, mood disorders, substance abuse, level of parties of their patients’ threats (http://alpha.fdu.edu/ distress, and compulsiveness toward actions (Gellerman psychology/guy_duty_to_warn.htm). & Suddath, 2005). Do you assess and/or treat mental or 5 A Washington court has ruled that a practitioner emotional disorders? If so, you should know how to conduct has a duty to extend involuntary commitment for an appropriate mental status assessment including factors involuntarily committed patients if dangerousness still such as violence fantasies, dangerousness, risk of suicide, and exists (http://www.ksbsrb.org/dutytowarn.html). so on. The courts expect mental health professionals to be 6. The 4th Circuit Court in North Carolina ruled that able to predict the potential harmfulness/dangerousness of a psychologist or psychiatrist is not required to seek their clients/patients (Lenihan, 1999). involuntary commitment for a patient who refuses Communicable diseases also trigger the duty to warn and voluntary commitment (http://www.apa.org/psyclaw/ protect in many states if there is an identifiable person at currie.html). risk (e.g., the partner of an AIDS client; Lenihan, 1999). The issues surrounding confidentiality, its limitations, It is important to note that the courts in different states its breaching, the mental status exam, issues of seem to take directly opposite positions in cases involving dangerousness to self or others, and duty to warn and the duty to warn and protect. It is important to remember protect should all be very carefully documented so that, that the specific circumstances in each case can influence if the need arises, one can clearly demonstrate to a court decisions about the duty to warn and protect. or others what was and was not done and why. Seeking consultation and/or supervision in difficult situations or when unsure of how to proceed should be a routine part References of practice, as should the documentation of such activities. Association for Applied Psychophysiology and Biofeedback. Sometimes the consultation should be with another mental (2003). Ethical principles of applied psychophysiology and health practitioner and sometimes with an attorney who biofeedback. Wheat Ridge, CO: Author. specializes in the activities of concern. Gellerman, D. M., & Suddath, R. (2005). Violent fantasy, dangerousness, and the duty to warn and protect. Journal of the American Academy of Psychiatric Law, 33, 484–495. Court Actions La Fond, J. Q. (1996). The impact of law on the delivery of A few court findings should help readers understand how involuntary mental health services. In B. D. Sales & D. W. different courts have ruled concerning issues related to duty Shuman (Eds.), Law, mental health, and mental disorder (pp. to warn and protect. 219–239). Pacific Grove, CA: Brooks/Cole. Lenihan, L. P. (1999, August). Physician duty to warn third parties. Physician’s News Digest. Retrieved June 23, 2008, from http:// 1. The Missouri Supreme Court ruled that physicians have www.physiciansnews.com/law/899lenihandv.html no duty to warn the general public (http://www.mobar. Smith, S. R. (1996). Malpractice liability of mental health org/mobarforms/courtsDetail.aspx?item+100). professionals and institutions. In B. D. Sales & D. W. Shuman Fall 2008  Biofeedback Fall

88 Striefel

(Eds.), Law, mental health, and mental disorder (pp. 76–98). Pacific Grove, CA: Brooks/Cole. Striefel, S. (2003). The application of ethics and law in daily practice. In M. S. Schwartz & F. Andrasik (Eds.), Biofeedback: A practitioner’s guide (pp. 813–834). New York: Guilford Press. Striefel, S. (2004). Practice guidelines and standards for providers of biofeedback and applied psychophysiological services. Wheat Ridge, CO: Association for Applied Psychophysiology and Sebastian “Seb” Striefel Biofeedback. Correspondence: Sebastian Striefel, PhD, 1564 E 1260 N, Logan, UT 84341-2847, Utah Mental Health Professional Practice Act, Laws of Utah, email: [email protected]. 63-55-258 and 78-14-3 (1994). Biofeedback  Fall

89