Rights and Responsibilities of Psychologists and Clients – Duty to Warn and Protect

Dr. Donna L. Roberts

A legal limitation imposed upon the right of confidentiality

https://img.particlenews.com/image.php?url=10eVau_0aMWbife00
Photo by Toa Heftiba on Unsplash

A fundamental aspect of the ethical practice of psychology involves clearly defining the rights and responsibilities of both the client and the psychologist as they engage in the collaborative task of therapy. These guidelines permeate all phases of the treatment relationship and represent issues paramount for protecting all parties and serving the best interest of the client. The topic encompasses both moral and legal issues, including informed consent, record keeping, involuntary hospitalization, malpractice, confidentiality, and the duty to warn and protect.

Duty to Warn and Protect

The duty to warn and protect third parties at risk of violence from patients represents an example of circumstances where a legal limitation has been imposed upon the right of confidentiality. The issue of duty to protect or warn was first addressed legally in the well-known 1974 Tarasoff case, in which the California Supreme Court held that “the doctor bears a duty to use reasonable care to give threatened persons such warnings as are essential to avert foreseeable danger arising from the patient’s condition.” It also noted that “protective privilege ends when the public peril begins”— a now well-quoted maxim (Chaimowitz, 2000).

Subsequently, the California Supreme Court, in an unusual move, reheard the same case in 1976, later known as Tarasoff II. Tarasoff II expanded on the original ruling, stating that “when a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more various steps depending upon the nature of the case. Thus, it may call for him to warn the intended victim or if it is likely, to apprise the victim of a danger, to notify the police, or take whatever steps are reasonably necessary under the circumstances” (Chaimowitz, 2000).

Generally, under common law, a person has neither a duty to control the conduct of another nor a duty to warn those at risk. Tarasoff and subsequent cases arising in its wake, made an exception when the defendant was engaged in a professional relationship with the person at risk of inflicting violence or the victim. In these situations, affirmative duties were supposed to benefit third parties.

The application of what has become known as the Tarasoff Doctrine varies somewhat from state to state. Typically, however, the elements required before a therapist may be found legally liable for failing to warn and protect are: (1) a psychotherapist-patient relationship existed, (2) the psychotherapist knew or should have known of the violent tendencies of the patient, (3) the victim was a "foreseeable" victim of the patient, (4) the psychotherapist did not take the necessary steps to discharge his duty to protect, and (5) that failure was the proximate cause of the victim's injuries (Trowbridge, 2000).

The Tarasoff ruling has been criticized for the absence of any discussion of alternative solutions, such as involuntary hospitalization of potential offenders, which would afford protection to society without breaching physician–patient confidentiality. It is argued that this fact has impacted both subsequent practice and legislation. Still other critics argue that while the purpose of warning is to protect, in some situations these actions may be insufficient or even increase risk to the victim. The Courts shifted the duty of clinicians to warn third parties into areas where they never previously exercised control. This shift has been especially pronounced in some states, where the definition of third parties has been expanded to include unspecified persons at unforeseen times and places (Trowbridge, 2000).

When a clinician becomes concerned about a patient’s risk of harm to third parties, various algorithms exist to assist in risk assessment. Appelbaum (1985) proposed a three-part model for the duty to protect: assessment, selection of course of action, and implementation. Most algorithms first specify a determination of whether the patient poses a danger to others and then determine whether the potential victim(s) are readily identifiable or belong to a reasonably identifiable group. Based on these determinations, various legal obligations ensue, including, notifying the identified victims, law enforcement authorities, or any other people who might be in a position to prevent the follow-through of violence. Proper record keeping documenting each step is of paramount importance.

The legal obligation to protect third parties from violent acts of patients has become very complex in both the US and Canada. It is important to distinguish the clinician’s duty to protect as a “legal obligation to take reasonable measures to protect third parties from one’s patient’s foreseeable harmful conduct” (Felthouse, 1999, p. 49) from the moral or ethical arguments of whether or not to intervene. In certain situations, the principle of confidentiality can operate in opposition of the legal obligation to protect third parties. It is important for practitioners to understand these obligations and the legislation, case law, statutes and guidelines impacting on these issues, notwithstanding the moral, ethical or professional debate about the duty to protect.

Ethical issues involving aspects of the rights and responsibilities inherent in each role of the therapeutic relationship can be complex and controversial. While the basic mandate of acting in the best interests of the client seems straightforward, in practice, it can require challenging professional assessments and judgment calls, and is thus subject to debate and conflicting interpretation. The issues are further complicated by the various legal standards and requirements related to patient issues. Practitioners must be firmly grounded in their professional standards and clearly demonstrate their continued commitment to serving the psychological well-being of their clients, even when, or more precisely, especially when, difficult ethical dilemmas arise.

REFERENCES

Chaimowitz, G. A. (2000). The duty to warn and protect: Impact on practice. http://www.psychdirect.com/forensic/PsychLaw/warn/duty_impact.htm

Felthous, A. R. (1999). The clinician’s duty to protect third parties. The Psychiatric Clinics of North America, 22, 49–59.

Trowbridge, B. C. (August 2000). Tarasoff law in Washington: The duty to protect. The Washington Psychologist, 54, p. 67-68.

Comments / 3

Published by

Writer and university professor researching media psych, generational studies, addiction psychology, human and animal rights, and the intersection of art and psychology.

1413 followers

More from Dr. Donna L. Roberts

Comments / 0