Ethical Considerations for the Duty to Warn/Protect
October 2020 | Jordan Tirone, Staff Writer/Editor
A healthcare provider must maintain confidentiality when it comes to protecting information about their client. Laws like the Health Insurance Portability and Accountability Act (HIPAA) make sure of this.[1] Additionally, the Hippocratic Oath sworn by doctors mentions a need to respect the privacy of their patients. However, what are the limits of confidentiality? Does a therapist have a duty to warn of impending danger from a patient to a third party? The therapy of a patient creates the ability for the therapist to potentially foresee dangers that threaten others. But, by warning others, a physician or therapist breaks the confidentiality of the patient and breaches the Hippocratic Oath.
The duty to warn and the duty to protect are provisions put in place to define healthcare negligence within the scenarios previously mentioned. While most states have statutory provisions regarding the duty to warn in place, Nevada was one of the last states to create legislation on the matter.[2] These provisions are helpful for professionals to define due diligence and to avoid liability falling on them by clarifying what level of risk outweighs patient-client confidentiality. The California Supreme Court brought attention to the duty to warn in the case Tarasoff v. The Regents of the University of California.[3]
In 1969, Prosenjit Poddar killed Tatiana Tarasoff. Poddar was a student at the University of California at Berkeley. He made advances to a fellow student, Tatiana Tarasoff, who rejected these advances. It was revealed that Poddar’s psychologist knew of his intentions to kill. Poddar told his psychologist that he had purchased a gun and was thinking of killing Tatiana Tarasoff. The psychologist reached out to campus police, who detailed Poddar. Poddar persuaded campus police to release him. The psychologist also reached out to their supervisor but was told to take no further action. Neither the psychologist, supervisor, nor police did not warn Tatiana Tarasoff, or her family, of the danger. Two months later, Tatiana Tarasoff was killed after coming home from abroad. The plaintiffs, Tatiana’s parents, argued that the defendant committed negligence by failing to warn Tatiana or others that could inform her of her danger.[4]
In the State of California, it is understood that a person does not have a duty to control the conduct of another person, but there are two exceptions to this. One exception of interest to Tarasoff v. The Regents of the University of California is if there is a special relationship between the defendants and the injured party. This comes from a case called Wright v. Arcade School District, where a young boy was hit by a car on his way to school, at an intersection the school knew was problematic. The argument here was that the school has a special relationship with the child and, thus, must protect the boy.[5] Does a therapist have a special relationship with a potential victim, as the school district did to the child, to protect the victim from foreseeable danger? This is a question that came up in the Tarasoff case.
It is also understood that confidentiality is important for effective psychiatric treatment.[6] The promise that everything discussed will remain between the client and the healthcare provider is essential for three reasons. The first reason is that a lack of confidentiality may be a deterrent from seeking treatment. If there is an understanding that confidentiality is not kept, an individual may not seek help. Second, the concept of full disclosure requires confidentiality. If there is a lack of understand that what will be discussed in therapy resides in confidentiality, then patients may not share their innermost thoughts. Lastly, successful treatment cannot be achieved without confidentiality. This is because without confidentiality, trust in the client-therapist relationship may be undermined. It is understood that trust in a healthcare provider is instrumental to successful therapeutic intervention.[7]
Another problem is how one defines negligence in this scenario. Where is the line between a healthcare provider maintaining confidentiality or being negligent? It is difficult to define whether a person is being truthful about what they say. A therapist will have to go through a risk assessment to judge whether or not a threat meets the need to protect or warn a potential victim. However, these risk assessments are notoriously unreliable.[8]
The question remains: should the need for a duty to warn and protect be placed on the therapist, degrading the ability to provide successful treatment? Or should they protect potential victims from threats, even though they cannot fully predict a person’s actions? An individual who is inclined to make and follow through with threats is clearly in need of counseling. However, they may not be inclined to seek help, share these thoughts, or finish therapy if they know their therapist must act in a way that is intrinsically against them.
It is necessary for these statutes, the duty to warn and the duty to protect, to be in place. There is an ethical obligation to protect an innocent person from harm that greatly outweighs the ethical obligation to remain confidential. It should be recognized that there is a need for confidentiality and trust within a therapeutic relationship, but it is more important to protect others from harm inflicted by a client. Trust can still be built within the therapeutic relationship, even with this disclosure. If an individual understands the provider’s obligation to breach confidentiality upfront, trust and the therapeutic intervention can overcome the obligation to successfully treat the patient.
It was only recently that Nevada adopted these necessary statutes. In 2015, a bill was placed in front of the Nevada State Senate (NV SB15) which subsequently passed. This bill required mental healthcare providers to warn a person if threats to harm them were explicitly made to the provider.[9] However, many sources say Nevada lacks legislation on the matter still, despite it being put into law as a revised statute.[10] The National Conference of State Legislatures,[11] as well as the Database of State Tarasoff Laws, remain unchanged.[12] The literature needs to be updated to reflect these changes. Vagueness in this area can lead to unintended malpractice or harm to innocent persons.
There are limits to level of confidentiality required by a healthcare provider. These were unfortunately created retroactively after the Tarasoff case. A gap was highlighted in the laws across the country and in the code of conduct of healthcare professionals. Tarasoff Laws, statutes that define a duty to protect and warn, allow for the whole of the healthcare system to set the standard for requiring these duties, and to not allow for variation in confidentiality practices. This allows clients to know they can still trust their therapist, and subsequently receive optimal treatment; in addition to creating clarity around standard practice and conduct in potentially dangerous situations.
Sources
Office for Civil Rights. “Summary of the HIPAA Privacy Rule,” HHS.gov (US Department of Health and Human Services, July 26, 2013).
Nevada Revised Statutes. “NRS 629.550.” NRS: CHAPTER 629 - HEALING ARTS GENERALLY, 2020.
Harvard Health. “The Duty to Protect.” Harvard Health, January 2006.
“Tarasoff v. Regents of University of California,” P.2d 551, 551, no. Docket No. SF 23042 (1976): 334.
“Wright v. Arcade School Dist.,” Cal.App.2d 230, 230, no. Civ. No. 10743 (1964): 272.
“In Re Lifschutz,” P.2d 467, 467, no. Docket No. Crim. 14131 (1970): 557.
Ibid.
Wand, Timothy. 2011. “Investigating the Evidence for the Effectiveness of Risk Assessment in Mental Health Care.” Issues in Mental Health Nursing 33 (1): 2–7. doi:10.3109/01612840.2011.616984.
The Senate Committee on Health and Human Services. “MINUTES OF THE SENATE COMMITTEE ON HEALTH AND HUMAN SERVICES.” Nevada Legislature, February 4, 2015.
Nevada Revised Statutes. “NRS 629.550.” NRS: CHAPTER 629 - HEALING ARTS GENERALLY, 2020.
Alise Garcia Karmen Hanson, “Mental Health Professionals’ Duty to Warn,” National Conference of State Legislatures, October 12, 2018.
Griffin Sims Edwards, “Database of State Tarasoff Laws,” SSRN, February 15, 2010.