Duty to Warn, Duty to Protect

By Steven Granich, LCSW, MPA, DSW

Since the Tarasoff case in 1974, duty to warn and duty to protect have become important as concepts in the field of social work and other helping disciplines. Being able to protect potential victims from harm and protecting clients from self-harm have become ethical obligations in social work practice. This area needs to be explored and understood by social work practitioners, educators, and social work students. Duty to warn and duty to protect have ethical implications for all social workers.

Walcott, Cerundolo, and Beck (2001) describe the facts of the Tarasoff case. Prosenjit Poddar and Tatiana Tarasoff were students at UC Berkeley. Poddar stated to the university health science psychologist that he intended to kill an unnamed woman, who was identified as Tatiana Tarasoff. Although the psychotherapist did not directly warn Tarasoff or the family, the psychologist notified the police, who interviewed Poddar for commitment. The police only warned Poddar to stay away from Tarasoff. After Tarasoff returned from a summer in Brazil, Poddar murdered Tatiana with a knife. Tarasoff’s family sued the campus police and the university health service for negligence. Walcott, Cerundolo, and Beck (2001) cite the second Tarasoff case, establishing a duty to protect.

When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of the duty may require the therapist to take one or more various steps, depending on the nature of the case. Thus, it may call for him to warn the intended victim or others likely to appraise the victims of that danger, to notify the police or take whatever steps are reasonably necessary under the circumstances (p. 340).

The Tarasoff case imposed a liability on all mental health professionals to protect a victim from violent acts. The first Tarasoff case imposed a duty to warn the victim, whereas the second Tarasoff case implies a duty to protect (Kopels & Kagle, 1993). There are many concerns about the implications of the Tarasoff case, especially around the confidentiality of the client-social worker relationship and violent clients avoiding treatment.

Since the second Tarasoff decision in 1976, there has been argument and debate as to the applicability of this judgment to the client-social worker relationship. The environment has changed for social work and confidentiality, as social workers now divulge confidential information to third-party payers. Tarasoff is an important decision with legal implications, and only 13 states in the U.S. lacked Tarasoff-like provisions at the time of Herbert’s report in 2002.

Duty to warn means that the social worker must verbally tell the intended victim that there is a foreseeable danger of violence. Duty to protect implies a therapist determining that his or her patient presents a serious danger of violence to another and an obligation to use reasonable care to protect the intended victim against danger (Harvard Mental Health Letter, 2008, January). This may entail a warning, police notification, or other necessary steps.

Duty to warn and duty to protect have implications for social work practitioners in the fields of mental health, HIV/AIDS, domestic violence, and medical social work. There are also serious implications for malpractice and unethical behavior. What began as a mental health issue has been expanded to other fields of social work practice.

Duty to Warn and Duty to Protect in Mental Health

In the field of mental health, it is difficult to actually make predictions of client violence. The Harvard Mental Health Letter (2006, January) makes recommendations for handling duty to protect with homicidal and suicidal patients.

The principles for managing a threat of violence are generally the same as those for dealing with a suicidal threat. Therapists should find out whether a patient has ever seriously injured or thought about seriously injuring another person. Especially with new patients or any patients whose symptoms are becoming worse, it is important to know whether they are dangerous to others and whether the danger is due to mental illness. Is the patient losing the capacity to control violent impulses? (p.4)

Duty to protect can involve warning the potential victim, notifying the police, starting a commitment hearing, informing mental health evaluators of the threat, and utilizing professional supervision. Duty to protect involves working with homicidal and suicidal clients. The obligation of duty to protect varies from state to state (Dolgoff, Loewenberg, & Harrington, 2009).

Failure to protect potential victims of violence can result in losing one’s job at an agency. Consider the following hypothetical example.

A professional social worker conducted an intake interview with a client with a history of mental health problems and violence toward his father. The client was somewhat delusional and stated that he might hurt his father that evening. The social worker made no effort to commit the patient for hospitalization. That evening, the patient became violent and broke his father’s leg. The next day, the social worker was fired for negligence.

Protecting the well being of homicidal and suicidal clients is the obligation of professional social workers. Social workers should frequently utilize supervision and consultation when working on this issue of duty to protect, because it has ethical and malpractice considerations.

Duty to Warn and Protect in HIV/AIDS Cases

Social workers often work with clients who are HIV-positive or have AIDS. Confidentiality is very important to such clients, because of the stigma attached. Huprich, Fuller, and Schneider (2003) consider the question as to whether the therapist has the obligation to warn a third party of risk of transmission of HIV if his or her client is actually putting another party at risk. Stanard and Hazler (1995) report a case in which duty to protect seems important.

Brian is a 24-year-old married bisexual man entering counseling to deal with grief and depression associated with a recent diagnosis of HIV infection. During the course of counseling, Brian discloses that he continues to be sexually active with his wife and also occasionally with anonymous male partners. Brian has not disclosed his diagnosis to anyone and maintains that it is not necessary to do so because he practices “safe sex.” (p. 397)

Melchert and Patterson (1999) discuss how being HIV-positive may pose a different situation from that of the Tarasoff case. Mental health professionals do not have the legal right to disclose that a person is HIV-positive to another person. This is at the discretion of physicians in many states. However, social workers and mental health professionals must struggle with this legal situation if a client insists on potentially harming another person through risk of transmission of HIV.

Domestic Violence

In domestic violence situations, there can be an identified threat of harm to a victim. Domestic violence is a cross cutting issue that affects the daily lives of many people receiving social services (Danis, 2003). People who commit domestic violence will often commit criminal acts such as homicide, assault and battery, criminal trespass, terroristic threats, stalking, and sexual assault. Depending on the state, social workers have a legal obligation to report threats of violence and to warn the potential victims. Attorneys sometimes play a similar role to that of social workers and are privy to information about potential violence. Different states have varying levels of obligation to report specific threats of violence or intention to act (Buel & Drew, 2007).

In working with clients who have a history of domestic violence, it is important to do a risk assessment of the situation to determine if there is a potential for harm. Also, the social worker needs to make every effort to try to defuse any potentially violent situation. Good clinical practice encourages social workers to send battering partners to treatment to work on issues of power and control. Social workers also need to protect potential victims by referring them to safe places where they are not exposed to violence. Couples therapy can work when each person has contracted for no further incidents of violence.

Consider this hypothetical case vignette, in which duty to warn a potential domestic violence victim presents a dilemma for a social worker.

A social worker is counseling a couple around issues of domestic violence. The husband reports that he has made threatening comments to his wife in the past. The wife has threatened to divorce her husband. The husband has stated that he would hurt his wife if they divorced.

The social worker must make a decision. Should she report the case to the police as a threat? Is this threat serious? How is she going to assess the situation to possibly carry out a duty to warn?

Duty to Warn and Protect in Medical Social Work

Social workers practice in the medical field, where many ethical dilemmas may arise with respect to duty to warn and duty to protect. With an increasing population of older clients in the United States, there are issues around caring for the frail elderly. Their children may not be willing to accept the recommendations that social workers make for their parents’ care. Following is a hypothetical vignette of just such a situation.

A social worker has recommended that an 88-year-old woman receive home health care. The family refuses this request, feeling that the 88-year-old woman can care for herself in her home. There is extreme danger of falling, missing meals, and not remembering to take medication at scheduled times. The social worker considers reporting this situation to Adult Protective Services.

Social workers may be consulted by medical personnel to help resolve issues in genetic counseling. Issues of duty to warn and duty to protect may come into play, for example, if a patient refuses to disclose genetic information or test results to a relative. A physician may need to consult a medical social worker to work with the family on this critical issue, because sharing the information may save the relative’s life.

Following is a hypothetical situation:

A 34-year-old woman receives the results of testing for cystic fibrosis, showing the probability of transmission of the disease through genetics. She wants to become pregnant but does not want to tell her husband about the test results. This presents a dilemma for the social worker who is counseling her.

Pullman and Hodgkinson (2006) discuss the issue of whether duty to warn in situations of genetics overrides considerations of confidentiality. In the United States, case law is expanding the responsibility of clinicians beyond patients to include family members.

Ethical Concerns and the Duty to Warn and Duty to Protect

Since the first Tarasoff decision in 1974, there has been an expansion of the debate around duty to warn and duty to protect, in that the social work literature has expanded to include mental health, HIV/AIDS, domestic violence, and medical issues. Social workers are confronted every day with difficult ethical concerns around duty to warn and duty to protect beyond the mental health field. Social work educators, practitioners, and students need to become knowledgeable about these concepts and their application in various specialties of social work.

A social worker must assess whether and when to apply duty to warn or protect and when to protect confidentiality, and this is not an easy decision. Appelbaum (1985) states that since the time of Tarasoff, mental health professionals have been concerned about confidentiality and the prediction of dangerousness. He sees three stages to making this decision: (1) gather relevant data to evaluate dangerousness and make a determination based on this data, (2) once determining a situation to be dangerous a course of action must be taken, and (3) the therapist must implement this decision.

Borum and Reddy (2001) believe that a fact-based deductive approach is effective in dealing with the issue of duty to warn and duty to protect. They posit that the challenges to making a decision about duty to warn and to protect are based on whether the client poses a serious risk of violence to another and what steps are necessary to protect an intended victim. The question for the clinician is whether in this situation something should be done and then what to do. The ethical obligation of confidentiality may conflict with the objective of preventing harm to others. To make this determination, Borum and Reddy (2001) state that the clinician must distinguish between making a threat and posing a threat, inquire into attack-related behavior, and conceptualize and gauge the client’s risk as a dynamic pathway to action.

Two hypothetical cases illustrate the duty to warn and duty to protect as they relate to confidentiality.

Case 1

John is a 35-year-old delusional mental health client who has been hospitalized numerous times. He states that he does not like his brother who lives in California and states that he has threatened him in the past. Today, the client has made a phone call to his brother again and threatened to beat him up. The social worker in assessing the dangerousness of the situation decides that there is no duty to protect or warn. The social worker determines that the threat posed is not serious. The social worker refers him to his psychiatrist for a medication check.

Case 2

David is a 35-year-old male who has a history of domestic violence toward his wife. Both David and his wife are in counseling separately for David’s violence toward his wife. In the counseling session, David insists that he is going to hurt his wife tonight at the house. He says that he is going to use a club or hurt her if she does not straighten up.The social worker questions further and determines that this threat is very serious. David has hurt his wife three times with moderate injury each time. The social worker decides that there is a duty to warn based on the threat posed to David’s wife.

A social worker failing to become knowledgeable about these critical issues can be subject to ethical and legal problems, including malpractice and ethical complaints before licensing boards. Social workers need to seek out knowledge in this area to be effective practitioners and educators. NASW provides a valuable Web site (http://www.naswdc.org/ldf/legal_issue/2008/200802.asp?back=yes ) on duty to warn laws in different states (NASW, 2011).

References

Appelbaum, P. S. (1985) Tarasoff and the clinician: Problems in fulfilling the duty to protect. American Journal of Psychiatry. 142, 425-429.

Borum, R., & Reddy, M. (2001) Assessing violence risk in Tarasoff situations: A fact based inquiry. Behavioral Sciences and the Law, 19, 375-385.

Buel, S., & Drew, M. (2007). Do ask and do tell: Rethinking the lawyer’s duty to warn in domestic violence cases. University of Cincinnati Law Review, 175, 447-496.

Danis, F. (2003). The criminalization of domestic violence: What social workers need to know. Social Work, 48 (2), 237-246.

Dolgoff, R., Loewenberg, F. M., & Harrington, D. (2009). Ethical decisions for social work practice (8th Ed.) Belmont, CA: Thomson.

Harvard Mental Health Letter, 2006, January, 22, (7), 4-5.

Harvard Mental Health Letter, 2008, January, 24, (7)4-5.

Herbert, P. B. (2002). The duty to warn: A reconsideration and critique. Journal of the American Academy of Psychiatry and the Law, 30, 417-424.

Huprich, S., Fuller, K., & Schneider, R. B. (2003). Divergent ethical perspective on duty-to-warn principles with HIV patients. Ethics and Behavior, 13 (3), 263-278.

Kopels, S., & Kagle, J. D. (1993). Do social workers have a duty to warn? Social Service Review, 67 (1), 101-126.

Melchert, T., & Patterson, M. (1999). Duty to warn and interventions with HIV-positive clients. Professional Psychology Research and Practice, 30 (2), 180-186.

NASW (2011). Social workers and “Duty to Warn” state laws. Retrieved http://www.naswdc.org/ldf/legal_issue/2008/200802.asp?back=yes

Pullman, D., & Hodgkinson, K. (2006). Genetic knowledge and moral responsibility: Ambiguity at the interface of genetic research and clinical practice. Clinical Genetics, 69, 199-203.

Stanard, R., & Hazler, R. (1995). Legal and ethical implications of HIV and duty to warn for counselors: Does Tarasoff apply? Journal of Counseling and Development, 73 (4), 397-400.

Tarasoff v. Regents of the University of California (Cal. 1976) 5551.p.2d 334.

Walcott, D. M., Cerundolo, P., & Beck, J. C. (2001). Current analysis of the Tarasoff duty: An evolution towards the limitation of the duty to protect. Behavioral Sciences and the Law 19, 325-343.

Steven Granich, LCSW, MPA, DSW, is Assistant Professor of Social Work at Lock Haven University. He has 30 years of experience as a licensed clinical social worker and licensed marriage and family therapist in mental health and substance abuse practice. He has research interests in social work clinical practice, drug courts, and international social work.

NOTE: Edited on July 25, 2013, and November 16, 2014.