Duty to Warn
Key Takeaways:
The "duty to warn" is a legal obligation for mental health professionals to disclose confidential information if necessary to protect others from harm. It varies based on state laws and professional guidelines.
Permissive Laws: Allow disclosure at the professional's discretion when there’s a substantial risk of harm. These laws often depend on clinical judgment and may not require identifying a specific victim.
Mandatory Laws: Require disclosure under specific conditions, such as an explicit threat to a reasonably identifiable victim (e.g., Massachusetts).
Aligning legal, ethical, and client considerations is ideal but challenging. Consulting a knowledgeable attorney can help navigate complex or unclear situations effectively.
What exactly is a “duty to warn”, when does it apply, and how do you know if it has been triggered? This will depend on who you ask, and what state you practice in.
Psychologists for example have the APA Ethics Code Standard 4.05(b) which says in part that they may only disclose confidential information without consent of an individual if mandated by law . . . “to protect the client/patient, psychologist, or others from harm”. Similarly, the National Association of Social Workers (NASW) Code of ethics states that breaching a client's confidentiality and right to privacy, without first obtaining a client's informed consent, should be done only for "compelling professional reasons”. The NASW further instructs social workers to “ make a responsible effort to resolve [conflicts between ethical obligations and laws or regulations] in a manner that is consistent with the values, principles, and standards expressed in [the] Code. If a reasonable resolution of the conflict does not appear possible, social workers should seek proper consultation before making a decision”.
Now, this guidance is helpful though it seems like just fancy ways of saying “don’t disclose confidential information without consent of the client, unless the law says you have to”. Ultimately the best case scenario would be for your ethical obligations, the client’s preferences and privacy rights, and the legal requirements to align. That isn’t always the case, but a lawyer's job is to get it as close as possible. This way both you and the client are protected. It is well worth consulting an attorney when you run into situations that don’t neatly fit into one solution.
So what does the law say? A “duty to warn”, as it’s understood today, was first established by a California Supreme Court case in 1976. Tarasoff v. Regents of the University of California set the precedent ruling that psychotherapists have a duty to warn a potential victim when the professional believes there is a clear danger to a third party even if this means breaching the client's confidence. The California Supreme Court concluded: "The protective privilege ends where the public peril begins." This case triggered passage of “duty to warn” or “duty to protect” laws in almost every state. There are two types of these laws: permissive and mandatory.
Permissive laws allow, but don’t require mental health professionals to disclose otherwise confidential information in the event of a threat. Because there is no requirement, the level of threat is often much lower. For example, under Connecticut statutes, communications and records may be disclosed when a mental health provider determines that there is a “substantial risk of imminent physical injury by the person to [themselves] or others…”. This is rather broad, indicating a high level of clinical judgment and not requiring the specific identity of a potential victim . It is also noteworthy that Connecticut has different rules for different professionals (i.e. one for psychologists, one for social workers, yet another for professional counselors, etc.) For example the rules for social workers don't cover harm to property, but the rules for psychologists and licensed professional counselors do mention protecting others' property from imminent harm. So, if a client talks about their plan to, let’s say, set their ex partner’s car on fire (without them inside), a psychologist or counselor may choose to warn the car's owner, whereas a social worker might not have the same option.
On the other hand, mandatory laws usually indicate that the mental health professional must disclose confidential information under certain circumstances. In Massachusetts for example, the statute says that there “shall be no duty owed by a licensed mental health professional . . . “unless” . . . [a patient] has communicated an explicit threat to kill or inflict serious bodily injury upon a reasonably identified victim(s)”. This provision necessitates a very specific type of communication from the patient towards a known individual or group. Massachusetts courts have confirmed that “the statute was created to embrace a mental health professional's carefully limited duty to warn a potential victim when it is plausible that a patient’s threat might result in actual harm”. Shea v. Caritas Carney Hosp., Inc.
The law is full of quirky, unnecessarily complicated, and seemingly arbitrary rules like this. Consulting a lawyer who respects your ethical responsibilities and knows the industry can make all the difference in feeling comfortable making the right decision.
This blog is intended for educational purposes only and does not constitute specific legal advice for any individual. Reading this material does not establish an attorney-client relationship between the reader and our firm. For personalized legal guidance, please consult a licensed attorney in your jurisdiction.