Sunday, April 8, 2012

State Laws Related to Tarasoff Decision


Until 1992, the state of Hawaii initially had no definitive Tarasoff (Simone & Fulero, 2005) law, but regarding client/counselor privilege, there is a rule on the prevention of crime or tort.  "There is no privilege under this rule as to a communication reflecting the client's intent to commit a criminal or tortious act that the psychologist reasonably believes is likely to result in death or substantial bodily harm. [L 1980, c 164, pt of §1; am L 1985, c 115, §18; gen ch 1985; am L 2002, c 134, §2]" (Hawaii State Legislature, 2011).

In the supplemental commentary, it mentions a psychotherapist's common law duty to warn forseeable victims of a client when the therapist believes the client is dangerous and may harm another individual. It further states "Hawaii will likely embrace Tarasoff, see Lee v. Corregedore, 83 H. 154, 925 P.2d 324 (1996), declining to create a duty to prevent a patient's suicide but recognizing a psychotherapist's duty to "disclose the contents of a confidential communication where the risk to be prevented thereby is the danger of violent assault...."  Hawaii added a Tarasoff exception to its lawyer-client privilege in 1992, rule 503(d)(2), and the present amendment extends the same protection to psychologists (Hawaii State Legislature, 2011).

Duty to warn or duty to protect dilemmas rely on the counselor's ability to determine the  intentions of the client.  In situations in which clients talk about hurting themselves or others, it would be critical to have immediate in-depth discussion with the client, letting the client know that you are required to notify authorities of any intention to cause harm to another person.  Similarly, when a client insinuates or discusses a plan to hurt themselves, similar notification is the legal requirement for the counselor.

In the state of Hawaii, Rule 503(d)(2) Tarasoff exception allows psychologists (later added psychotherapists) to break confidentiality in cases where duty to warn is necessary.  Although a counselor has a legal obligation to warn in such cases, it is an ethical obligation to gather as much information as possible, notify the client of your ethical and legal obligations, and notify authorities in any case when the counselor is reasonably sure of impending harm by the client to self or others.

Obviously, clarity is important when notifying authorities of any warning that involves a client.  Making a hurried assumption with little information could do irreparable damage to the client and the client/therapist relationship.  One problem with making a decision to notify authorities in that time may be a limited commodity.  In some cases, when the client intends to act quickly on the decision to harm themselves or others, such as in the Tarasoff case when the client committed the crime within a relatively short amount of time after the counseling session, the counselor must act quickly. 

The counselor may have to act immediately on the decision to notify authorities. This is one good reason for familiarity with a good decision-making model.  When making quick decisions, there may be a limited amount of time to implement all the steps in a decision making process.
In this state, I am protected by the State of Hawaii, Rule 503(d)(2) and have a legal obligation to warn as I believe necessary (Hawaii State Legislature, 2011).  I am ethically bound by the ethical codes of the profession, but I am legally bound by the state of Hawaii in my role as a psychotherapist.  Upon learning of a legitimate plan to harm self or others, I understand my ethical and legal responsibilities, and would consult with a peer if the immediate opportunity was available.  Knowing that such notification could be life saving, I would notify authorities. 
 
In the case of an intention to hurt oneself, I would discuss and recommend inpatient care, hoping the client would acquiesce.  In the case of a client determined to hurt another person, I would contact authorities as well as contact the intended victim.  Using any decision making model, it is difficult to foresee the outcome of an incorrect assumption when implementing a warning.  The Tarasoff case (Simone & Fulero, 2006) has shown how issuing these warnings can be life saving. 
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Hawaii State Legislature. (2011). Rule 504.1 Psychologist-client privilege. Hawaii State Legislature. Retrieved March 26, 2012, from http://www.capitol.hawaii.gov/hrscurrent/vol13_Ch0601-0676/HRS0626/HRS_0626-0001-0504_0001.HTM

Simone, S., & Fulero, S. M. (2005). Tarasoff and the duty to protect. Journal of Aggression, Maltreatment & Trauma, 11(1/2), 145-168.

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