Duty to warn

The “duty to warn” is a law that allows therapists to break confidentiality if the client is a danger to themselves or others. However, breaching confidentiality is not something to be taken lightly. Confidentiality is one of the most important aspects of therapy. Without it, clients would not feel comfortable being vulnerable and sharing their feelings. Plus, each state has their own laws regarding when - or even if - it is acceptable to do so. But there is something even more sacred than confidentiality: client and community safety. In short, it is complicated. Let’s unpack what the “duty to warn” means for therapists.

The origins of duty to warn

One case is famous within the mental health community for its impact on the limits of confidentiality in the face of a threat:

Tarasoff v. Regents of the University of California

The therapists’ “duty to warn” originally came about from a tragic case in the mid 1970s. A University of California student, Prosenjit Poddar, had confided his intention to kill his girlfriend, Tatiana Tarasoff, to his therapist, who worked at a hospital affiliated with the University of California. 

The therapist did not warn Tatiana or her family (he did alert campus police) and Prosenjit did indeed end up killing her. Tatiana’s family sued the University of California for not warning them and Tarasoff v. Regents of the University of California emerged. The case went all the way to the California supreme court, which ruled that confidentiality was secondary to the public’s safety. The concept of “duty to warn” was born.

Since that time, states have created laws protecting the safety of the client and others that may be threatened by violence. However, each state has its own laws. Most have an explicit “duty to warn” but others do not. 

For example, Georgia has a mandatory “duty to protect" but not to warn. This means that the therapist must take measures to protect the client (e.g, notifying the police) but is not legally required to warn the potential victim. 

Maine, alternatively, has no law which says it is mandatory that a therapist must either protect or warn the client, although the therapist might feel ethically and morally bound to do so. Needless to say, therapists must be familiar with their state’s laws regarding the “duty to warn”.

Watch Your Free On-Demand Webinar: 9 Admin Tasks to Automate In Your Private Practice

The Process of Duty to Warn

The following are therapist considerations when addressing the “duty to warn”:

Educate and inform

All therapists should tell their clients about the “duty to warn” in the first session. It can fit in nicely during the talk about confidentiality and informed consent. This will let clients know the limits of confidentiality so they don’t reveal any information without knowing the consequences.

Assessing the threat

Deciding to break confidentiality is a very serious decision. The success of therapy is largely built on the trust between therapist and client. As such, confidentiality should only be breached when you feel there is a legitimate and imminent threat of harm to your client or another person.

Much like assessing suicidality, the therapist needs to consider several factors before reaching the conclusion that a threat is worth reporting:

• The client needs to state an imminent intent to harm a person. For instance, they might say “I am planning to kill my ex-girlfriend today”. It is best to have them reiterate the threat and make sure they are serious about it throughout your conversation. Please note that if they say they may want to hurt someone at some point in the future, that may not be considered imminent.

• The potential victim is identifiable. In order to warn someone, you need to know who they are. This will require the client to provide some identifying information. If the client makes a more general threat, the therapist must push for more information to see if the threat is legitimate and worthy of reporting. Sometimes, a therapist may have an idea who the client is talking about even if they don’t say exactly who it is. Ultimately, you must use your judgment as to whether the threat is credible.

• They express a specific plan. For example, “I am going to go to her house and shoot her".

• They have the means to carry it out. This is an important aspect of the assessment process. If someone makes a threat and has a plan but has no means of carrying it out, then it adds another level of uncertainty. For instance, your client says they want to shoot their ex-girlfriend but they have no gun and no apparent way to get one. Or, their ex-girlfriend lives in another state and they have no conceivable way to get there.

• Does the client have a history of homicidal or suicidal ideation/behavior?

• If you are on the fence, it might help to contact a supervisor or colleague and get their perspective. In the end, this is a subjective decision based on available information. Breaking confidentiality is the last resort but it is better to be safe than sorry.

The American Psychological Association has an informative article illustrating therapists’ tasks and concerns regarding their “duty to warn” and “duty to protect”.

Contacting the potential victim

In states where there is a legal “duty to warn”, therapists must contact a potential victim if they believe a serious threat exists. Reaching a close family member is also an acceptable first step, but you should always try to reach the target person as well. It is always recommended to tell your client that you will be contacting this person and the rationale for doing so. Although this is a difficult conversation, it will help you to maintain the therapeutic relationship later. If there is a “duty to warn”, there is also likely a “duty to protect”, meaning you will also need to contact law-enforcement to tell them about the potential threat.

Documentation

Documentation is incredibly important when contemplating the “duty to warn”. You want to be able to show why you did or did not make the choice to break confidentiality. The therapist is encouraged to write down every aspect of their decision-making process. Remember, if a threat was carried out, your documentation may be required for a court proceeding that could impact your career.