What is duty to warn?

The duty to warn is the legal responsibility of health care providers to forgo their commitment to confidentiality when they determine that a patient is at risk of harming him- or herself or others. In practice, the duty to warn is most commonly associated with the mental health profession and the psychologists, counselors, and others who are tasked with assessing the mental well-being and stability of their patients. While various duty-to-warn laws have been enacted by state governments since the 1970s, concerns over the potentially harmful implications of such legislation still linger.

Overview

Under normal circumstances and regardless of field, medical professionals are expected to uphold the principle of doctor-patient confidentiality at all times. Health care providers are required to keep patients' personal information private and may not divulge any such information without proper consent. In certain situations, however, these providers may be ethically or legally bound to violate a patient's normal right to confidentiality to ensure the patient's safety and the safety of others. More often than not, this sort of breach occurs when it becomes apparent that a patient threatens or seems likely to do harm to him- or herself or others or presents some significant risk to public health. In such instances, health care providers may be required to warn the appropriate authorities and/or potential victims of any dangers posed by patients.

Although it applies to all health care providers, the duty to warn is of greatest concern to mental health professionals. Because they work with patients who may be unable to control their own impulses or may lack the intellectual capacity to understand the consequences of their actions, mental health professionals must occasionally make the decision to forgo confidentiality in favor of acting on their duty to warn. This, it is supposed, will help to prevent others from falling victim to acts of violence perpetrated by mentally unstable aggressors.

Historical Background

The duty to warn first arose in the legal aftermath of a criminal case involving the murder of a young woman at the hands of a mentally unstable admirer. In October 1969, Prosenjit Poddar, an Indian student enrolled in a graduate program at the University of California at Berkeley, killed Tatiana Tarasoff , a fellow student who had scorned his romantic advances. The two had become friends a year earlier but had a falling out when Tarasoff admitted that she did not have feelings for Poddar. Following this admission, Poddar suffered a severe mental breakdown. During the summer of 1969, Poddar underwent psychological treatment while Tarasoff spent a few months in Brazil. During the course of his treatment, Poddar told Dr. Lawrence Moore that he intended to kill Tarasoff when she returned. While Moore did notify campus authorities about the threat, he did not inform Tarasoff or her family. Shortly after Tarasoff's return, Poddar followed through on his promise, shooting and stabbing her to death.

After Poddar was convicted in a criminal proceeding and later deported back to India, Tarasoff's family filed a wrongful-death civil lawsuit against the university and its health department for not warning their daughter about Poddar's threat. The case was eventually tried in front of the California Supreme Court, which ruled that Moore had a duty not only to preserve Poddar's confidentiality but also to warn Tarasoff of the potential danger she faced. In the years that followed, the California Supreme Court's precedent-setting decision in the Tarasoff case led to the enactment of duty-to-warn laws (called the Tarasoff rule in California) and other similar regulations across the country.

In Practice

As variations on the concept of duty to warn have become law in most states, mental health practitioners have faced increasing pressure to accurately identify patients who present a legitimate risk to themselves or others. In most cases, potentially dangerous patients are identified through the careful use of risk assessment tools that help professionals gauge a subject's likelihood of committing an act of self-harm or outward violence. Regardless of their approach, however, practitioners ultimately have sole responsibility for determining whether a patient's behavior has become enough of a public threat to warrant overriding doctor-patient confidentiality and acting on the duty to warn.

Alternative Applications

While the duty to warn is most frequently thought of in relation to mental health, it also applies in a variety of other circumstances. A doctor who is treating a patient diagnosed with a dangerous and easily communicable disease—the Ebola virus, for example—may have to reveal details of the patient's condition to the appropriate authorities to prevent a public health crisis. In another scenario, a doctor who believes that a patient under his or her care may have been subjected to abuse or neglect might have to report such suspicions to law enforcement. In such instances, the duty to warn supersedes the need to maintain confidentiality.

Criticism

Though various duty-to-warn guidelines have been adopted in all fifty states, not all health care providers agree that such an approach is beneficial for everyone involved. Some argue that making duty to warn mandatory by law leads to an overabundance of exceptions to the right of confidentiality. Others also argue that mandating duty to warn may discourage people from seeking the help they need or from being open about any potentially dangerous intentions. Finally, some concern exists that the risk of legal liability related to the duty to warn may discourage providers from treating potentially problematic patients.

Bibliography

"Mental Health Professionals' Duty to Warn." National Conference of State Legislatures. Web. 27 Jan. 2015. http://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx

Millner, Vaughn S. "Duty to Warn and Protect." Encyclopedia of Counseling. Vol. 2. Eds. Frederick T. L. Leong, Elizabeth M. Altmaier, and Brian D. Johnson. Thousand Oaks, CA: Sage Publications, 2008. 575–78. Print.

Stankowski, Joy E. "Duty to Warn." Wiley Encyclopedia of Forensic Science. Vol. 2. Eds. Allan Jamieson and Andre Moenssens. Chichester, UK: Wiley, 2009. 885–90. Print.

Weiss, Marcia J. "Tarasoff Rule." Forensic Science. Vol. 3. Eds. Ayn Embar-Seddon and Allan D. Pass. Pasadena, CA: Salem Press, 2009. 968–71. Print.