Duty to Warn and Reporting Threats of Harm: What You Need to Know
How should you respond when a patient or client threatens to harm someone? Make sure you understand your state’s duty to warn requirements and all of the nuances.
(Originally published February 11, 2018, updated November 11, 2021)
Confidentiality is a key part of most provider-patient relationships. Health care professionals, especially those who focus on mental health, are ethically and legally obligated to safeguard client conversations and information.
But what if a client makes troubling statements that suggest harm to others? Must psychiatrists, psychologists, social workers, therapists, counselors, and other mental health professionals inform someone of their clients’ statements? The duty to warn — commonly known to lawyers as the Tarasoff rule — provides some insight.
The Tarasoff Rule’s Origins
In 1969, Prosenjit Poddar, a UC-Berkeley student, told his psychologist, Dr. Lawrence Moore, that he intended to kill a young woman he had dated. Although Poddar did not identify his intended victim by name, his threat was sufficiently specific that Dr. Moore could discern that the potential victim was Tatiana Tarasoff.
Concerned that the threat was legitimate, Moore consulted a professional mentor to determine the appropriate course of action. Together, they decided to alert campus authorities. When campus police questioned Poddar about the alleged threats, he denied having ever made them.
Poddar was released, and Tarasoff was never notified about the threats. Soon thereafter, Poddar killed Tarasoff.
Tarasoff’s parents then sued the university and the two psychologists. Her parents argued that if Tarasoff had known of the threats, she could have taken precautionary measures to prevent her death. The California court ultimately ruled that psychologists are responsible for protecting or warning identifiable victims of imminent threats made by their clients.
The Tarasoff decision impacts how mental health professionals practice. It imposes an ethical burden upon mental health professionals to report threats. However, the individual states determine the requirements. If a client makes a credible threat, state laws vary on how the provider can satisfy the duty to warn. The options might include:
- warning the victim or victims
- warning relatives
- reporting to law enforcement
- acting to protect the intended victim (e.g., hospitalizing the client)
Reporting Threats of Harm: What You May Have Missed
Most mental health professionals know, whether by training or instinct, that something needs to be done when a client threatens to harm someone. But even if you’re generally aware of the duty to warn as a concept, note that there are nuances. Here are a few key points.
Different professions may have different requirements.
Many states, like New York, impose a mandatory duty to warn on all types of licensed mental health professionals to prevent outcomes like that of Tarasoff. In other states, reporting responsibilities vary among mental health professionals. For example, in Illinois, psychologists and psychiatrists are legally obligated to report legitimate threats. Thus, they have a “mandatory” duty to warn. In contrast, Illinois therapists can voluntarily report. They have a “permissive” duty to warn.
This state-by-state, profession-by-profession approach means that it’s important to understand both what type of duty to warn your state imposes and precisely to what categories of professionals that duty applies.
Credible threats might come from the client’s family members, not just the client.
In many cases, mental health professionals learn of their client’s threats from the client’s family. Although these providers may not witness or hear the threat directly, they often have the authority and responsibility to act upon these types of threats. Notably, these situations are also ripe for violations of client privacy if not handled properly.
This extension of the Tarasoff doctrine stems from the Ewing v. Goldstein case. In Ewing, a client’s father told a psychotherapist that the client intended to kill a specific individual. However, the therapist did not notify law enforcement or take any action to protect the client’s intended victim, whom the client ultimately killed.
The Ewing court extended California’s duty to warn to include a duty to act upon communications from third parties about potential harm. Ewing demonstrates how the boundaries of a providers’ duty to warn can become even more complex when third parties are involved.
Generally, no duty to warn exists if the client doesn’t reference a specific or identifiable victim.
Sometimes, clients make threats without identifying their potential victims. In these situations, mental health professionals typically do not have a responsibility to report the threat to authorities. For example, in Eckhardt vs. Kirts, a client told her therapist that she intended to kill someone who may belong to one of several different groups. However, because the client did not identify an intended victim, the therapist was unable to warn or protect the ultimate victim — the client’s husband.
The court in Eckhardt did not hold the therapist liable. The court stated that “human behavior is simply too unpredictable and the field of psychotherapy presently too inexact” to make therapists responsible for all the actions of their clients. Further, the court noted that imposing such broad responsibility would “place an unacceptably severe burden on those who provide mental health care.”
Telehealth can complicate the duty to warn.
Telehealth may hinder understanding of the nature of client threats. Body language cues and connectivity problems may affect a provider’s ability to gather key details that could impose a duty to warn. If you use telehealth as a mental health provider:
- Understand and keep track of your specific duty to warn obligations. If you practice in multiple states, do this for each state in which you practice.
- Continuously evaluate whether telehealth is appropriate for each client. For some clients, telehealth might not be the best option for both client and provider.
- Ensure you have a plan for responding to emergencies and crises. Responding to a threat of harm can require quick action. Therefore, it’s best to consider this issue when it is not an emergent question facing your practice.
How to respond
Duty to warn situations can be ambiguous, and the repercussions of reports can be unpredictable. Therefore, handling a threat of harm often presents a challenge. The Tarasoff doctrine simultaneously recognizes mental health professionals’ duty to uphold their clients’ confidentiality and their duty to take action when a potential victim is at risk.
If you’re facing an urgent situation where disclosure may be necessary, your attorney can help you determine your obligations. Better yet, your attorney can help you craft and implement a practice policy now so that you can act quickly in these situations.
The healthcare attorneys at Jackson LLP work with many independent mental health practices and practitioners to help them mitigate risks and stay compliant. If you practice in one of the states where we are licensed, schedule a complimentary consultation to determine if we’re a good fit for your legal needs.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.