While therapy is built on a foundation of trust and confidentiality, therapists must sometimes disclose information in the interest of public safety. The "duty to warn," has been the subject of extensive legal and ethical debates, shaping how mental health professionals work through client care.
HIPAA and duty to warn
According to the National Conference of State Legislatures (NSCL), “The duty to warn involves disclosing a patient or client's confidential information if they pose a danger to themselves or others. For some therapists and counselors, the decision to disclose without consent is an ethical consideration. For others, it is a legal obligation. In most states, mental health professionals have a legal duty to warn which mandates them to break confidentiality if they suspect that a client may become violent. Others permit but do not require disclosure in these situations, with a handful of states having no duty to warn or only allowing it in very limited circumstances.”
While the Health Insurance Portability and Accountability Act (HIPAA) allows disclosures to avert imminent threats, providers must also consider state laws and ethical guidelines that may impose a duty to warn or require patient notification. In certain circumstances, such as when reporting suspected abuse or neglect, providers must promptly inform the patient about the disclosure, unless doing so could endanger the patient or others involved.
Read also: What is HIPAA?
The origins of the duty to warn
The concept of the duty to warn emerged from a landmark legal case, Tarasoff v. Regents of the University of California, which occurred in 1976. In this case, a client named Prosenjit Poddar confided his intentions to kill a woman, Tatiana Tarasoff, to his therapist, Dr. Lawrence Moore.
Despite the disclosure, neither the police nor Tarasoff's family were warned, and tragically, Poddar went on to murder Tarasoff. The Tarasoff family sued the therapists and the university, arguing that their daughter's life could have been saved had the appropriate parties been notified.
The California Supreme Court's ruling in this case established a legal precedent, stating that a therapist's duty to maintain client confidentiality is secondary to the public's safety. This decision laid the foundation for what is now known as the "duty to warn" – the obligation of mental health professionals to disclose a client's threat of violence to the intended victim or relevant authorities.
Expanding the duty to warn
The duty to warn was further expanded in the 1983 case of Jablonski by Pahls v. United States. In this case, a therapist conducted a risk assessment of a client named Philip Jablonski but failed to review his history of violence. As a result, Jablonski's girlfriend, Ms. Kimball, was not warned about his previous violent behavior, and she was later killed by Jablonski after his release.
The court's ruling in this case established that mental health providers have an obligation to review a client's treatment history to assess the potential for harm and to take appropriate action to warn and protect potential victims.
The ethical dilemma
The duty to warn presents a complex ethical dilemma for mental health professionals. On one hand, the primary responsibility of a therapist is to maintain the confidentiality of their client's disclosures, as this trust is imperative for the therapeutic process to be effective. Breaching this confidentiality can damage the therapist-client relationship and undermine the client's willingness to be open and honest.
On the other hand, the duty to warn is intended to protect the safety of the public, preventing potential harm and even loss of life. Therapists must weigh the ethical obligation to maintain confidentiality against the moral imperative to prevent violence and protect innocent individuals.
Navigating the duty to warn
Mental health professionals must carefully assess the credibility and specificity of the threat posed by their clients. Direct, specific threats to harm or kill another individual would clearly trigger the duty to warn, as the therapist has a responsibility to inform the intended victim and relevant authorities.
However, in cases where the threat is more vague or less specific, the therapist must use their best judgment to determine if the client presents a danger. This assessment often involves considering factors such as the client's history of violent or aggressive behavior, the progression of their symptoms, and the seriousness and specificity of the threat itself.
Related: HIPAA for mental health professionals
The importance of informed consent
In the context of the duty to warn, the need for informed consent cannot be overstated. Therapists have an ethical obligation to inform their clients, from the outset of the therapeutic relationship, about the limits of confidentiality and the circumstances under which they may be required to disclose information without the client's consent.
Transparency helps to establish a foundation of trust and understanding, allowing clients to make informed decisions about their participation in therapy. By setting clear expectations and boundaries, therapists can work with the duty to warn while preserving the integrity of the therapeutic relationship.
Read more: Patient consent: What you need to know
FAQs
What is the duty to warn, and how does it relate to HIPAA compliance?
The duty to warn refers to a legal obligation in some states for mental health professionals to warn potential victims when a patient poses a serious threat of harm. HIPAA allows disclosure of patient information in such cases if necessary to prevent a serious and imminent threat to health or safety.
Does HIPAA prevent mental health professionals from disclosing patient information when there's a duty to warn?
No, HIPAA permits disclosure of patient information without patient consent when necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public. Mental health professionals should disclose the minimum necessary information to individuals in a position to prevent or reduce the risk of harm.
Why is the duty to warn important?
The duty to warn is important because it serves to protect the safety of the public by allowing therapists to disclose a client's threat of violence to the intended victim or relevant authorities.
Learn more: HIPAA Compliant Email: The Definitive Guide
Farah Amod
