Duty to Protect
The Legal Basis
The Tarasoff ruling, expanded further by the Hedlund case and other decisions, details the therapists duty to protect and warn. The protective privilege ends where the public peril begins: If you break the privilege of confidentiality in an effort to protect life, you generally will not be held liable for this breach under a doctrine of "qualified privilege" (i.e., if you can prove that there was a necessity to breach confidentiality). A recent review of suits against therapists for warning others indicates that, even though warning potential victims opens the therapist to allegations of breach of confidentiality, they should still do so to avoid liability for subsequent violence.
When adopting Tarasoff, the courts have usually followed these three basic principles in assessing liability:
- Foreseeability of harm(e.g., a verbal threat to an identifiable victim).
- Identifiability of a victim.
- Feasibility of therapist intervention.
Some states have passed variations on the original protect and warn legislation and many court cases have sent mixed messages about the limits of therapists liability and required behavior. You should maintain up-to-date familiarity with your local laws. Its also important to remember that the courts have never held a therapist liable when a professionally proper response was made. You will not be held responsible for a negative outcome if you have carefully and diligently performed proper evaluation, planning, and implementation of your clients treatments.
When Do You Have a "Duty to Warn"?
Therapists have a duty to warn--and should reveal the threat of violence--whenever there is reasonable cause to believe a client is dangerous to a person or to property. Reasonable cause is determined by these two core characteristics:
- The threat must be towards a specific and definable target. This must be a particular person, identifiable persons, or defined property, rather than a general group or category. The threat may be toward the client's self, and could include such stated intentions as self-mutilation, suicide, or even self-neglect.
- The threat has to be believable. It should be explicit, not vague. Motives count, as does the clients personal history of threats or violent behavior.
We strongly urge you to become educated in evaluating dangerousness and violence and to stay current with developments in the field. A therapist is not liable for simple errors made in good faith and with reasonable professional judgment
Steps To Take When You Decide To "Warn"
Many factors are involved in what attorneys refer to as "discharging your Tarasoff duties." While you are mandated to take "reasonable" and "necessary" steps to protect the potential victim or victims, each situation is unique and your course of action will be guided to a great degree by the specific circumstances. Good sense suggests that you implement as many of the following options as are reasonable, appropriate, and in observance of your states laws:
Warn the intended victim.
Warnings to intended victims should be as discreet as possible in an effort to protect the clients confidentiality, however the warning may include statements made by the client which you believe are necessary to reveal in order to effectively convey the serious intent of the threat to the victim (Menendez v. Superior Court).
Notify the local law enforcement agency.
Call the police in the precinct nearest to the client and get the name and badge number of the person taking the report. Send a follow-up certified letter to the police and intended victim stating your concerns; always remember that disclosure should be discreet and limited to the prevention of threatened violence.
Contact relatives or others who can apprise the potential victim of the danger.
Initiate voluntary or involuntary commitment.
This will shift the burden of decision-making to the courts.
Document all your observations and efforts.
The duty to protect sometimes extends to protecting patients from themselves. Courts usually recognize that suicide cannot be well predicted, however, professionals have been held liable when they ignored or failed to assess indicators of suicide. Courts usually consider two fundamental issues: (a) did the professional adequately assess the likelihood that a patient was suicidal? and, (b) if an identifiable risk of harm was determined, did the professional take sufficient precautions to prevent suicide? In general, the therapist is protected from liability if they have conscientiously performed and documented a thorough evaluation, followed by carefully considered, appropriate interventions.
Each case is unique; there is no one foolproof set of comprehensive considerations for assessing a clients suicidal ideation. When determining a clients potential for suicide and what course of warning action to take, you will evaluate a wide range of criteria, such as:
- Is the suicidal ideation an old or new idea?
- Have they ever attempted suicide before?
- Do they have a plan for how and when? Once you have established a rapport, be calm, matter-of-fact, and non-judgmental. You will not plant an idea by asking.
- Do they have an available means for carrying out their plan?
- Do they have a support network?
- Do they have depressive symptoms?
- What conflicts or life stressors are present (e.g. serious illness, divorce, death of a loved one)?
- What, if any, psychological disturbances such as rigid thinking or low self-esteem exist?
- What is their lifelong coping pattern?
Its important to maintain up-to-date familiarity with the referral and support resources in your community; trying to locate assistance when you have a crisis on your hands may be too late. (Note: In addition to suicide crisis support resources, you should obtain and keep close at hand the names and phone numbers of other crisis support resources, including violence, abuse, homicide, etc.).
NOTE: Every effort has been made to ensure that the information provided by 4therapy.com is accurate and up-to-date, however, it is important to remember that laws vary from state to state and local legislation can add further variations. We strongly urge you to stay current with your state and local laws.