Mental health professionals learn early in their education and training about their ethical and legal obligation to keep client information private. This is referred to as client confidentiality. “Confidentiality” relates to the responsibility of certain professionals, like therapists, to keep client information private.
The preservation of client confidentiality is considered necessary in order to encourage clients to tell their mental health professionals information that they don’t want others to know about. Only with this information can mental health professionals be most helpful to their clients. If a client is afraid that their therapist will tell others what they say, they won’t tell their therapist their private thoughts or experiences. These thoughts and experience are, however, vital to a therapist’s understandings of the client’s condition and circumstances. Without this information, the therapist will be limited in how they can assist and support their client.
While the obligation to preserve client confidentiality is generally vast, and supported by law and ethics, there are limits. The therapist’s obligation to protect client confidentiality is challenged when the client tells the therapist something that makes the therapist concerned that the client is in danger, or someone else is in danger. In these situations, the otherwise client confidential communication might trigger the therapist’s legal or ethical “duty to warn” or “duty to protect”. The obligation of mental health professionals as “mandated reporters” of suspected child maltreatment is one related area. You can find more information about how to talk to your clients about your role as a mandated reporter at THIS BLOG.
The Tarasoff Case
Many mental health professionals learn about the duty to warn or protect through an examination of the Tarasoff v. Regents of California case. In 1969 a graduate student told his campus-based therapist that he planned to kill a female student who he was obsessed with and stalking, Tatiana Tarasoff. The therapist informed the campus police of their concerns. The campus police briefly detained and released the graduate student after assessing him as “rational” and having him promise to leave Tarasoff alone. No one ever contacted Tarasoff, and she was killed by the graduate student. Her family sued the school and the therapist claiming they had a duty to protect or warn Tarasoff. The Court agreed, and declared that the therapist “pursuant to the standards of their profession should have so determined, but nevertheless failed to exercise reasonable care to protect her from that danger”. In other words, the therapist should have attempted to warn Tarasoff, directly.
The “Tarasoff” duty is largely seen as the “duty to protect” or “duty to warn” people who the therapist reasonably believes are in danger. The law, and professional ethics, do not require the therapist to stop any harm from occurring, but to take “reasonable care” to prevent that harm.
Not every state has the same law as it relates to the “duty to warn and/or protect”. This website provides clarity on state differences. These differences are based on statutory and case law variations across jurisdictions. Some states require the therapist to warn an intended victim directly; some states require the therapist to inform a government agency, like the police; some states require both actions; some states require nothing. California has some of the most expansive expectations, whereas there are still some states who have absolutely no legal expectation that a therapist will warn/protect anyone.
In order to determine if the therapist has the duty to warn/protect, courts and legislatures have generally considered the following conditions:
Is there a “special relationship” that results in the therapist having some level of duty to another person? In Tarasoff, the therapist was seen as having a special relationship with the graduate student that gave the therapist a level of control over the graduate student.
Does the therapist have a “reasonable prediction” of harmful conduct of a serious nature? In Tarasoff, the therapist seemed to have a reasonable prediction that the graduate student would act on their plan, and that’s why the therapist informed campus police.
Is there a foreseeable victim? In Tarasoff, the Court ruled that since the therapist knew the identity of the intended victim, their obligation did not end when they informed the campus police; they should have attempted to contact Tarasoff directly to warn her.
Applying 4 Basic Ethical Principles (Beneficence, Nonmaleficence, Autonomy and Justice)
It is helpful to also consider the duty to warn/protect in the context of the four basic ethical principles discussed in this BLOG. When a therapist considers breaching client confidentiality out of a duty to warn/protect they should consider whose beneficence they are intending to preserve. They are specifically prioritizing the well-being of the identifiable victim. The therapist should also consider their obligation to minimize the harm (nonmaleficence) that might come from the breach of client confidentiality, namely the loss of trust of the treating professional. If the therapist breaches confidentiality in order to inform law enforcement and/or the intended victim, the client might feel aggrieved or harmed, even if that harm was necessary to protect the intended victim. The duty to protect/warn also implicates the therapist’s professional autonomy or choice. The therapist might report to law enforcement out of fear that if they do not they will get in trouble, but simultaneously recognizing that this breach will damage their professional relationship with the client, making it more difficult to engage with and help the client. The therapist should also consider justice: therapists should make efforts to ensure the application of their duty to warn/protect is applied without impact of race, gender identity, age, or other protected class. A breach of client confidentiality has considerable consequences, that should not be unfairly experienced by some groups more than others.
In furtherance of all four ethical principles, the clinician should also make sure the client continues access to assessment and clinical intervention to address the underlying concerns that led to the duty to protect. Without those efforts, the client is likely to not be helped by the report, and the risk of harm to others remains.
What about concerns for “Self-Harm”?
If a therapist has concerns that their client is at risk of causing self-harm, their “duty to protect/warn” might be implicated. The therapist should consider the first two factors outlined above:
“Special Relationship”: Therapists should always consider that they have a “special relationship” to their client.
“Reasonable Prediction of Harmful Conduct”: Not all ideations of self-harm lead a therapist to have a reasonable prediction of harmful conduct. Therapists should be aware of up-to-date assessment methods to help inform their evaluation of the likelihood of self-harm. The APA has a great blog on the topic of assessment and intervention with patients at risk of suicide.
If a therapist has a reasonable prediction that their client is going to seriously harm themselves they are likely required by the law in their state to make an effort to inform someone or some entity of their concerns. When their client is an adult, they will likely need to discharge their duty to protect by informing the police or the heath department. If their client is a minor, they will likely need to discharge their duty to protect their client by informing the minor’s parent(s). If the minor’s parent(s) do not seem to be adequately responding to the therapist’s concerns a report to child protective services, law enforcement or the health department might be required by state law. But, a report to a government agency when a minor is at risk of self harm is NOT required if the parent is taking appropriate steps to mitigate the risk to the child.
Most importantly, however, the clinician should also make sure the client continues access to assessment and clinical intervention to address the underlying concerns that led to the duty to protect. Without those efforts, the client is likely to not be helped by the report, and the risk to self remains.
Expanding the Duty to Warn
The 2004 case of Ewing v. Goldstein brought a particular set of circumstances that complicated the Tarasoff evaluation. In the Ewing case, a California therapist had concerns about their adult client’s worsening depression after the client’s former partner started a new relationship with another person, Ewing. The therapist sought and received client permission to talk to their parent. Their parent relayed to the therapist concern that the adult client was going to harm the new partner. The therapist instructed the parent to seek to have the adult child committed to inpatient psychiatric care. After a brief stint in inpatient care, the adult client was released against the objections of the therapist, and subsequently killed Ewing and themself. Ewing’s family sued the therapist asserting that the therapist should have made an attempt to warn Ewing directly. The California court agreed with Ewing’s family, thus expanding the definition of “special relationship” and finding that the therapists’ duty to warn can be implicated by communications other than those from the client directly.
The Ewing case is a California case, and thus is not considered binding in all states. However, therapists should be aware of this case and the potential applicability in their own state.
There was push back from therapeutic professional groups after the expansion through Ewing. Groups like the American Psychological Association and others have serious concerns that the Ewing decision will open up therapists to wider liability as well as discouraging clients from sharing vital information with their therapists under the expectation of confidentiality protections.
Clients are best protected when therapist make decisions balanced by the considerations of the four ethical principles of beneficence, nonmaleficence, autonomy and justice. When therapists are more concerned about potential legal liability than their ethical obligation to their clients, they are constrained and clients suffer.
Please note, this blog if offered for information and consideration, but does not constitute legal advice.
For more information, resources and training opportunities check out www.makingthetoughcall.info and www.kraseconsulting.com
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