Saturday, August 18, 2012
Duty to Warn
According to Welfel, Werth, and Andrew (2009), 14 states within America are somewhat ambiguous about the duty to warn or protect, however, thirty two states mandate the responsibility of counselors and other psychological professionals to warn and/or protect others from dangerous clients. The state of Hawaii passed a ruling on the psychological professions and their responsibility to prevent a crime or tort in 1980. That ruling determines that confidentiality may be breached if the counselor believes the client intends to commit a criminal or tortious act that could result in death or significant bodily harm (Hawaii State Legislature, 2011). Prior to this ruling, psychotherapists had a common law duty to warn foreseeable and identifiable victims of their clients if they believed their clients were a danger or were intent on harming another individual. In 1992, the state of Hawaii created a Tarasoff exception, Rule 503(d)(2) and 504 extending the lawyer-client protection to psychotherapists (Hawaii State Legislature, 2011).
The implications of duty-to-warn mandates have put tremendous pressure and responsibility on counselors. As evidenced by last week's application, many situations occur within counseling sessions in which clients' messages can be ambiguous, at best, leaving the counselor to determine the risk assessment and the seriousness of any threatening rhetoric or behavior (Sommers-Flanagan, Sommers-Flanagan, & Welfel, 2009). As with any ambiguous situation in counseling, peer consultation (or supervision, when appropriate) is critical. Equally important is keeping accurate documentation of these situations that may result in legal actions by the client or others (Andrew, Kent, & Sirikantraporn, 2009). Research (Corbin, 2007; Andrew, Kent, & Sirikantraporn, 2009) suggests when counselors determine the need to warn or protect, they should seek adequate legal counsel.
Andrew et al., (2009) posits that the stronger the therapeutic alliance, the less problematic it will be if a counselor must breach confidentiality in cases of dangerous intent, although I do not believe this should be to the exclusion of acting within the law or ethical codes. Furthermore, duty to warn or protect has powerful implications in the critical importance of informed consent and making sure the client understands, in no uncertain terms, the implications of dangerous ideation as well as the extent of confidentiality and mandated reporting in these situations.
Part of the complexity of confidentiality and duty to warn or protect is the delicate balance of understanding the sometimes ambiguous messages clients give to counselors, maintaining the privacy of the client, but protecting the client or others by breaking confidentiality when it is reasonable and appropriate to do so. To effectively contend with issues of confidentiality, it is ultimately important for the counselor to understand confidentiality's complex nature, its limitations, as well as thorough knowledge of the applicable laws and ethical codes. The issue of duty to warn and/or protect is critical for the client, the counselor, and the profession.
Welfel, Werth, and Andrew (2009) found that almost 75% of counselors and other psychological professionals did not fully understand their ethical and legal responsibility with clients they perceive as dangerous. Adding to the complexity, the responsibility of counselors and clinicians changed somewhat when the California Supreme Court replaced the original wording of the mandate from warn to protect. Perhaps understanding the difference in rhetoric gives counselors additional opportunity as well as responsibility, although my understanding is that the duty to protect gives counselors options to breaching confidentiality. Implementing the duty to protect (especially the client from self-harm) may allow the counselor to circumnavigate breaching confidentiality, and instead choosing hospitalization or increased outpatient therapy.
As evidenced in the Tarasoff case (Simone & Fulero, 2005), this landmark event has provoked profound long-term repercussions for the psychological professions. Understanding the legal and ethical requirements of duty to warn and protect and the ramifications of failing to do so have powerful and far-reaching implications in the personal protection of one's licensure as well as one's livelihood.
Andrew, G.H. B., Kent, L., & Dirikantraporn, S. (2009). Chapter 2: A review of duty-to-protect statutes, cases, and procedures for positive practice. In J. L. Werth, Jr., E. R. Welfel, & G. A. H. Benjamin (Eds.), The duty to protect and the ethical standards of professional organizations (pp. 9–28). Washington DC: American Psychological Association.
Corbin, J. (2007). Confidentiality & the duty to warn: Ethical and legal implications for the therapeutic relationship. The New Social Worker, 14(4), 4-7.
Hawaii State Legislature. (2011). Rule 504.1 Psychologist-client privilege. Hawaii State Legislature. Retrieved March 26, 2012, from http://www.capitol.hawaii.gov/hrscurrent/
Simone, S., & Fulero, S. M. (2005). Tarasoff and the duty to protect. Journal of Aggression, Maltreatment & Trauma, 11(1/2), 145–168.
Sommers-Flanagan, R., Sommers-Flanagan, J., & Welfel, E. R. (2009). The duty to protect: Ethical, legal, and professional considerations for mental health professionals. In J. L. Werth, Jr., E. R. Welfel, & G. A. H. Benjamin (Eds.), The duty to protect and the ethical standards of professional organizations (pp. 29–40). Washington DC: American Psychological Association.
Welfel, E. R., Werth, J. L., & Andrew, G.H. B. (2009). Introduction. In J. L. Werth, Jr., E. R. Welfel, & G. A. H. Benjamin (Eds.), The duty to protect and the ethical standards of professional organizations (pp. 3–8). Washington DC: American Psychological Association.