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Duty to Protect Or Warn What Those Situations Are (Striefel, 2003, 2004)

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Duty to Protect Or Warn What Those Situations Are (Striefel, 2003, 2004) Biofeedback ©Association for Applied Psychophysiology & Biofeedback Volume 36, Issue 3, pp. 86–89 www.aapb.org PROFESSIONAL ISSUES Duty to Protect or Warn Sebastian “Seb” Striefel, PhD Department of Psychology, Utah State University, Logan, UT Keywords: duty, warn, protect, risk assessment, confidentiality Violence is a fact of life. As such, virtually every state has Health care professionals—by virtue of being pro- laws specifying that health care professionals have a duty fessionals—are holding themselves out to the public as to protect or warn, and the specific legal requirements having special knowledge and skills in the form of services vary from state to state and discipline to discipline. Every for which some clients and some third parties are willing biofeedback practitioner providing mental health care to pay. Being a professional means that one has special and related services should be familiar with the relevant obligations and responsibilities to those served and often laws of the state in which he or she practices and with to others as specified in ethical principles (Association for the court precedents related to that law. Being able to Applied Psychophysiology and Biofeedback, 2003), practice deal appropriately with the relevant issues surrounding guidelines and standards (Striefel, 2004), and laws. This confidentiality and the ability to assess for, predict article will focus primarily on health care professionals’ dangerousness to self and others, and deal with the same are responsibilities as specified in the duty to protect and/or expected standards of care that can vary in implementation warn laws. from state to state. Consultation with colleagues and/or an attorney can be important. History and Origin The specific duty to warn and protect varies from state to Introduction state based on the actual duty to protect or warn law of that Violence is an ever increasing concern in our society. One state (Smith, 1996). In addition, there are numerous court need but read a newspaper to become aware of the prevalence cases that have extended and/or limited the requirements of violence in our individual communities, the country, and of the duty to warn and protect laws. Although the the world. Violence is also a recurring problem encountered findings of a court case are usually binding only in the by health care professionals in the form of child abuse state in which the court case was filed, such cases often and neglect, client suicide or threat of suicide, client intent serve as a precedent that is used in deliberating court to kill another or actually doing so, and, of course, clients cases in other states and in modifying the duty to warn who kill or try to kill their health care provider. Health and protect laws in other states. For example, the Tarasoff care professionals providing biofeedback services need to be case in California in 1969 resulted in litigation that ended familiar with the laws governing their activities in reference up in the California Supreme Court some 6½ years later. to actual or potential violence, how to assess the probability In that case, a patient (Prosenjit Poddar) informed his of violence, and their duty to their clients and others in psychotherapist at the University of California in Berkeley reference to possible violence. These laws would include the that he intended to kill his girlfriend, Tatiana Tarasoff. Dr. following: Moore, the psychotherapist, contacted the police to have Poddar confined to an institution for observation. The 1. Involuntary commitment laws; police decided that Poddar was harmless, and Dr. Moore’s 2. Child abuse and neglect reporting laws; supervisor requested that all records of contact with the 3. Abuse, neglect, or exploitation of disabled persons police be destroyed. Two months later, Poddar killed Ms. reporting laws; Tarasoff. The parents sued the university, arguing that at 4. Abuse, neglect, or exploitation of the aging reporting least a warning should have been issued to Ms. Tarasoff. laws; The California Supreme Court agreed that the defendants 5. Duty to protect or warn laws; and had breached their duty to exert reasonable care. The court Biofeedback 6. Communicable diseases reporting laws (note: the title of concluded that therapists have a duty to warn identifiable the law may vary from state to state). third parties of potential violence arising from a patient’s Fall 2008 Fall 86 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 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 Fall 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).
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