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Nearly every mental health professional has faced the difficult task of having a client at one time or another that may pose a danger to themselves or someone else. This situation can present a conflict at times for therapists and others who are torn between preserving client confidentiality and protecting others from potential harm. Fortunately, there are legal procedures in place for dealing with this kind of dilemma. The downside to this, however, is that the legal guidelines are not always the same in each jurisdiction. Being aware of the specific methods for and legal obligations for dealing with these kinds of situations within each specific state is the responsibility of the practitioner, and can be difficult for therapists who may practice in more than one state or who relocate their offices from one state to another after a period of time.
However, knowing a little bit of background about the duty to warn and the duty to protect and the cases that led to the imposition of these legal duties can help guide therapists and other mental health professionals in implementing ethical strategies for dealing with these kinds of circumstances. The legal concepts of duty to warn and duty to protect were first introduced in 1976, with the case of Tarasoff V. Regents of the University of California. This case established that therapists are obligated to inform an identified third party of potential danger if a client indicates that he or she may harm another individual. However, a large number of states also have a strict set of guidelines for executing the duty to warn in that there must be evidence of the possibility of serious danger or harm, the harm is very likely to occur, and that the targeted individual has been clearly identified.
While the duty to warn refers specifically to notifying a potential third party of the imminent danger or harm, the duty to protect has broader implications. With the duty of protect, which is an option only in some states or jurisdictions, the therapist still has the legal obligation to protect a third party from danger but can do so through a variety of options such as hospitalization, more rigorous outpatient therapy, or other methods of intervention that still enable the therapist to maintain client confidentiality. While the duty to protect is a preferred method of dealing with these kinds of situations among mental health care professionals, this form of legislation is only in place in 24 states, with an additional nine states operating under this duty due to imposed court decisions in district or regional court systems.
Exceptions to the duty to warn can be seen in a number of instances when the general public is concerned. In most situations, therapists are under no obligation to warn the general public about the risk of danger from one individual, even if a threat is noted. The implications of this exception are particularly of importance when it comes to the threat of transmission of HIV and other contractible diseases. In most states it is already illegal to knowingly infect another person or group of people with HIV. However, therapists are not legally obligated, and even discouraged from, warning the general public about the risk of transmission of HIV from a knowingly infected client. In this instance, client rights and confidentiality would prevail.
Another instance where the duty to warn and the duty to protect are of importance is when it comes to the threat of child abuse. In many states, therapists and other professionals are obligated to report when a child may be in danger or is being harmed, often without regard to client confidentiality or an obligation to further provide additional intervention or treatment to the client. However, the problem that is seen in many states or situations is that there are no clearly defined guidelines as to how severe the harm has to be in order for a therapist to breach confidentiality. While most legislation specifies that there must be a “clear and immediate danger,” the definition of this can be construed differently by many people and at different times. For example, spanking could be perceived as some to be a “clear and immediate danger” to children, while to others, the threat would have to be much more severe in order to violate client confidentiality in favor of protecting a child.
While it is clear that there are many legal obligations that therapists have to warn others about potential dangers and to protect clients and others from harm when the need arises, the difficulty in executing many of these duties often lies in ambiguous guidelines in many jurisdictions. Often, it is an ethical decision that each individual practitioner must make based on their own principles, the laws within their specific jurisdiction, and their perception of the way the law is defined and the specific situation.
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