What Is My Duty to Warn?

Although psychiatrists are legally required to protect the confidentiality of mental health information disclosed by their patients, most states have laws either mandating or permitting psychiatrists to reveal confidential information when patients pose harm to a third party.

Most of these laws, commonly referred to as “duty to warn” laws, were passed following the seminal court case of Tarasoff v. The Regents of the University of California. This case established a duty among mental health professionals to warn potential victims of a risk of violence. The laws afford mental health professionals immunity from civil and criminal liability for the disclosure of confidential mental health information under certain conditions. The specific requirements of these laws vary by state, and it is important to consult your local attorney or risk management professional when faced with a duty to warn/protect situation.

Most jurisdictions now follow one of three approaches:

• Mandatory duty to warn (majority of states)

• Permissive duty to warn

• No duty to warn (minority of states)

In a “mandatory” duty to warn state, mental health professionals must warn potential victims (and in some states, law enforcement) of threats made by a patient, when all three of the following conditions are met:

• A specific threat of physical harm is made.

• There is a clearly identified or reasonably identified victim.

• The patient has the intent and ability to carry out the threat.

In a “permissive” duty to warn state, mental health professionals may breach patient confidentiality to protect a third party, but they are not required to do so. Generally, the same three conditions cited above should be present to disclose otherwise protected information.

In a “no duty to warn” state, mental health professionals are not permitted to breach patient confidentiality to warn third parties of potential threats.

In the event that a claim arises against a mental health professional in a duty to warn/protect situation, the professional’s documentation will be a critical tool in building his or her defense. Specifically, in “mandatory” as well as “permissive” jurisdictions, it is important to document the following:

• An assessment of the specific threat made by the patient.

• An assessment regarding the identity of the potential victim.

• An assessment regarding the ability of the patient to carry out the stated threat.

• Attempts made to contact the potential victim (and law enforcement if required), including the content of the conversation and the means used to make contact.

Recent violent events have raised concerns about how to protect the public from potentially violent patients. Most states have laws either mandating or permitting psychiatrists to warn identified victims of potential harms, even if that information would otherwise be protected as confidential. A psychiatrist’s duty to warn/protect varies by state, and it is important to stay abreast of current laws and ethical guidelines, including any recent changes. If you have any questions, consult an attorney or risk management professional.

For more information, please see the online risk management course, “Minimizing Risk When Treating Suicidal and Violent Patients,” available on APA’s Learning Center Risk Management page. ■