Do you have a duty to warn? It may depend on where you live.
What is the duty to warn and what does that mean for healthcare providers?
There are specific legal cases that lay it out. In the 1976 landmark case of Tarasoff v. Regents of the University of California, a court found that a psychologist should have warned his patient’s girlfriend after his patient told the psychologist of his intention to kill her despite a breach in confidentiality.
In the 1986 case of Jablonski by Pahls v. the United States a doctor conducted a risk assessment of Mr. Jablonski but did not review his history of violence. As a result, the client’s girlfriend was not warned and he later killed her.
By 2014, cases like People v. Kailey issued the rule that when a patient relays threatening communications during therapy, and that therapist discharges his or her duty to warn, the threatening communications triggering that duty are not confidential.
These laws describe a reasonable person’s actions in the face of impending harm, so said Andrea Barnes, JD, Ph.D, an attorney and clinical psychologist and the director for professional affairs for the Massachusetts Psychological Association.
She gave one example:
“If a patient is leaving saying he’s going to kill his wife and she’s picking him up, I’d have to tell her,” she explained. “It comes down to imminence. If someone is going to get hurt, that’s the bottom line.”
There are about 27 states in which the duty to warn is mandatory, including Vermont, New Hampshire, and Massachusetts.
Connecticut and Rhode Island have a “permissive” duty to warn while up until recently, Maine had no regulations for a duty to warn.
Recent legislation in Maine has provided for mandated reporting in certain situations. Ken Lehman, a shareholder in the Litigation Group and a co-chair of the Health Care Group at the law firm of Bernstein Shur based in Portland, Maine, says the language of the law is confusing. For example, it indicates some professionals but not others.
“For years, people have been saying Maine has no mandated duty to warn but now it does. But it’s limited in scope,” he said. “They passed legislation without specifically naming certain other professionals like nurse practitioners or physician assistants. It covers allopathic and osteopathic doctors. But those practitioners and assistants work with those allopathic and osteopathic professionals, so to not include them seems a little silly.”
He noted how the language of legislation can be vague and effectively boils down to a judgment call on the practitioner’s part. Maine legislation dictates an imminent threat and to take reasonable precautions “if the physician has a reasonable belief based on communications with the patient that the patient is likely to engage in physical violence that poses a serious risk of harm to self or others.”
But Lehman posed the question, ‘what if your communications of violent behavior come from the patient’s spouse or a close friend?’ Other privacy rules like HIPAA may be permissive of someone other than the patient, but this one limits the communication solely with the patient.
What if you’ve been that patient, does that change your perspective? Kathy Flaherty, JD, executive director of CT Legal Rights Project, said it does. She not only provides the legal help for mental health patients within a hospital situation and outside in the community, but she also had her own mental health crisis. In college, she struggled with depression and anxiety and was later diagnosed with bipolar disorder in law school. At one point, she was hospitalized involuntarily.
“From the perspective of a lawyer, we have a rule of conduct as to when to disclose attorney/client information,” she said. “For clinicians, it’s a different relationship. I wouldn’t pretend they are the same.”
She added the attorney’s job is to be the advisor and counselor for the client. But ultimately, lawyers advocate for what the client wants even if they don’t agree with it. If a clinician feels the need to warn others or even involuntarily hospitalize a patient because of his or her behavior, the potential damage done to the therapist/patient relationship when a confidence gets broken may be more problematic in the future.
The way she sees it, the question is what do you think is going to happen? Is this a prediction of possible behavior or is it actual behavior?
Kathy Flaherty, JD, is the executive director of CT Legal Rights Project.
“For clinicians, they have to recognize the difference between acting on someone’s behalf because they make a generalized, vague threat of, say, suicide,” she said, “as opposed to a direct threat of I’m going to kill someone.”
Flaherty says the difference between mandated reporting and permissive reporting is you are required to notify if you are mandated whereas permissive means you have the option to do so and if you do there will be no professional consequences. But Flaherty cautioned that people don’t realize the devastating consequences psychiatric treatment has. An assumption is made about what that help means and how it plays out in real life.
“You may think you’re getting that person help but there are so many cascading consequences from that,” she said. “Stigma [about mental illness] is far too nice a word. It’s discrimination.”
The laws surrounding the basis of the clinical relationship factor in a judgment call as to what reasonable action should take place when imminent harm is involved. But laws differ from state to state and, as in the case of Maine law, its language may be vague and not so easy to interpret. As Lehman pointed out, clinicians need to look at the law, consult with colleagues, or talk to an ethics committee for guidance. And certainly, getting legal advice is never a bad idea. For Barnes, the situations in which a duty to warn becomes necessary is not as common as one might think.
“There are limits to what we can keep confidential by law,” said Barnes. “In therapy these things shouldn’t be a surprise if a patient has a history of violence. You would probably know the indications of that. But these are rare situations. If therapy is working, it shouldn’t get to this point.”