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What Do We Mean by "Duty to Warn"?

     

There has been much public misconception about “duty to warn,” the requirement of mental health professionals to warn of potential threats. In general, a duty to warn requirement applies to confidential information gained during mental health treatment and does not relate to publicly available information. Here’s a brief summary of requirements.

Generally, doctors and mental health professionals are legally required to maintain confidentiality of patient information they gain during the course of the doctor-patient relationship. State laws, commonly referred to as “duty to warn” laws, provide exception to confidentiality requirements allowing or requiring mental health professionals to disclose confidential mental health information under specific circumstances. These laws allow or require mental health professionals to warn individuals (or law enforcement) when a patient poses a threat to their safety. Not all states have duty to warn laws.

A 1976 California court decision in Tarasoff v. The Regents of the University of California, led many states to pass duty to warn or duty to protect laws. The case involved a mental health professional becoming aware of risk to a student by a patient during a confidential treatment session. The patient ultimately murdered the student. The California courts imposed a legal duty on psychotherapists to warn a person who may become a victim of violent act by a patient.

As Kristen Lambert, J.D., M.S.W., Moira Wertheimer, J.D., R.N., explain in a 2016 Psychiatric News article, state laws generally follow one of three approaches to disclosure of otherwise confidential information:

  • Mandatory duty to warn (majority of states)
  • Permissive duty to warn (permit but do not require warning)
  • No duty to warn (minority of states)

The states that require mental health professionals to warn potential victims of threats made by a patient, generally require that there be a specific threat of physical harm, an identifiable victim and the patient has the intent and ability to follow through with the threat.

The specifics vary from state to state. A summary of state laws is available from the National Conference of State Legislatures. States vary for example on whether they require straightforward reporting of a threat or involve the professional’s judgement of the patient’s intent and ability to carry out the threat. States also vary as to whether to the threatened individual, law enforcement or both must be notified. And they vary on the types of professionals covered by the laws. Most state laws apply to psychiatrists, psychologists and licensed social workers.

In the states requiring or permitting warning, Lambert and Wertheimer suggest it is important for mental health professionals to document:

  • An assessment of the specific threat made by the patient.
  • An assessment regarding the identity of the potential victim.
  • An assessment regarding the ability of the patient to carry out the stated threat.
  • Attempts made to contact the potential victim (and law enforcement if required), including the content of the conversation and the means used to make contact.

Duty to warn requirements only apply to information about a specific threat obtained in the process of confidential doctor-patient interaction. The requirements do not apply to judgements based on other public information.

By APA Staff

References

     

Conduct DisordersPersonality DisordersPTSD

 

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