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Psychotherapy And The Law - Page 4

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Duty to Warn

Q: When is there a duty to warn another person of a client's stated intentions to inflict physical harm?

Because they were all modeled after the Tarasoff ruling, duty-to-warn laws are quite similar from state to state. Most duty-to-warn laws say that when the client communicates to a mental health professional the threat of bodily harm to an identifiable victim and has the ability, or is perceived to have the ability, to do the harm, the mental health professional must inform the victim, have the client admitted to a mental health facility-either voluntarily or involuntarily-or take some other action to discharge the duty to warn.

Gerald Corey, author of Issues and Ethics in the Helping Professions, created a set of guidelines called "Should We Act or Not?" that lists questions to ask yourself in this type of situation. He says that if you answer yes to two or more of them, you probably have a duty-to-warn obligation. While these questions aren't legal recommendations, they do provide good guidance. The questions include:

  • Has the client expressed some specific intention to commit violence, as against transitory thoughts or expressions of feelings?
  • Has the client identified the kind of action he or she intends?
  • Does the client have the ability to carry out the action?
  • Has the client identified an intended victim and/or plan of action?
  • Is the client unable to understand what he or she is doing and incapable of exercising self-control? (History of prior violence would be a negative indication.)
  • Is the client incapable of collaborating with the therapist in maintaining control of his or her behavior?

Q: How should you proceed when you conclude that there's a duty to warn?

Remind the client of your ethical and legal obligation to warn. Invite the client to participate in the process, if possible. Develop a plan with the client to surrender weapons, which are critical to being able to harm others. Inform your supervisor, attorney, law enforcement, local psychiatric hospital, and the intended victim, depending on what you can do in your state to discharge the duty. Keep careful records of all actions taken. Your records are your defense, and these are cases for which your documentation needs to be specific and detailed to show proof that you've done what you needed to do to discharge your duty. If you have a violent client in your office, there's no code or law mandating that you put yourself in danger to discharge your duty to warn. If you feel that you're going to be attacked or that you're in danger, you don't have to inform the client of your intended actions, and you shouldn't bring the client into the process.

Q: Is there a duty to warn with a client who threatens to blow away the next driver who cuts him off in traffic, when you know the person carries a loaded 9 mm under the car seat?

This is a case to sit down and talk to the client seriously about your obligations: "Hey, I have a duty-to-warn obligation here. You're scaring me, and I have legal obligations that I will honor." Let the client know that you don't want to be put in the position in which you're trying to make this judgment call, and try to convince the client to get the gun out of the car. If the client doesn't cooperate and remove the gun, and doesn't indicate that his/her statements are only expressions of frustration, I personally would begin duty-to-warn procedures. In my opinion, the presence of the gun contributes significantly to the seriousness of your duty.

Consulting is important in a situation like this. Call your professional organization and ask what they recommend. They may give you some clarity. And document, document, document.

Q: Is there a duty to warn when a client says that she's going to kill the woman her husband's having an affair with, and that she's narrowed it down to one of two people and plans to follow her husband to his "meeting" that night to find out who the woman is?

This is a clear-cut duty-to-warn case, and I wouldn't hesitate to tell the client that. There's an identified victim and threat of bodily harm. It doesn't matter that there are two choices, because the victim will be whoever shows up with the husband. So there's undoubtedly enough information to require breaking confidentiality and reporting.

Q: What are the ethical and legal duties around self-injurious behavior?

Under our codes and laws, as long as a client isn't suicidal or doing harm that could end in death, we're generally not obligated to report self-injurious behavior. There's no code or law that mandates breaking confidentiality for self-injury; however, some mental health facilities and school systems may have policies that require reporting.

Don't assume that self-injury is a failed suicide; usually it's not. Research indicates that people often self-injure so their stress doesn't get so bad they consider suicide. Yet because many self-injurers have indicated suicidal thoughts and attempts, you should conduct a suicide assessment to assure and maintain competent clinical practice.

Clifton Mitchell, Ph.D., conducts legal and ethical training throughout the county utilizing a stimulating game-show format, where participants play variations of Jeopardy and Family Feud with thought-provoking legal and ethical questions. Contact: clift mitch@comcast.net. Tell us what you think about this article by e-mail at letters@psychnetworker.org, or at www.psychotherapynetworker.org. Log in and you'll find the comment section on every page of the online Magazine.

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