The Duty To Protect: Four Decades After Tarasoff

The Duty to Protect: Four Decades After Tarasoff

The American Journal of Psychiatry Residents’ Journal April 2018 6 ARTICLE The Duty to Protect: Four Decades After Tarasoff Ahmad Adi, M.B.B.S., M.P.H., Mohammad Mathbout, M.B.B.S. Since the time of Hippocrates, the extent of patients’ right to confidentiality has been a topic of debate, with some arguing for total openness and others for absolute and unconditional secrecy (1). In Tarasoff v. Regents of the University of California (1976), the California Supreme Court held that mental health providers have an obligation to protect persons who could be harmed by a patient. The court’s decision mandates that mental health professionals use “reasonable care” in informing authorities or warning potential victims, initially referred to as the “duty to warn,” or by using whatever means deemed necessary, should they determine that a patient poses a threat to a third party (2).

The duty to protect has proliferated widely and has been adapted in some form throughout the United States. Forty years after the Tarasoff ruling, the threshold of the duty to protect remains subjective, with no clear set of clinical guidelines regarding when a breach of confidentiality is warranted. This ambiguity places mental health providers in a difficult position, balancing the need for confidentiality with the obligation to warn potential victims. Confidentiality facilitates open communication by reassuring patients that the intimate details of their lives disclosed to their healthcare providers will remain private. US legislation emphasizes the importance of confidentiality, which is enforced through acts like the Health Insurance Portability and Accountability Act (HIPAA).

HIPAA ensures that communication for treatment among healthcare providers about a patient is privileged. The scope of patient protection varies depending on state laws and specific contexts, but most states have some form of privilege applicable in judicial or quasi-judicial proceedings, whether civil, criminal, or administrative (3). The Tarasoff decision ultimately paved the way for the principle that while confidentiality and privilege are important, they are not absolute, especially when a patient communicates a legitimate threat that endangers a third party (4).

The immediate dilemma created by the Tarasoff ruling involves identifying the point at which “dangerousness”—often, but not always, of an identifiable individual—outweighs the obligation to maintain confidentiality. HIPAA guidelines stipulate that mental health providers, like other healthcare professionals, can be liable for breaching confidentiality. Nonetheless, the duty to protect aims to relieve providers of liability by mandating alerts about threats; however, misjudgments can have legal consequences. A provider who believes a breach is justified but is mistaken may be held liable for the breach, regardless of good intentions. Conversely, prioritizing confidentiality over warning could expose the provider to civil liability for negligence if a preventable harm occurs to the threatened third party (5).

Following the Tarasoff ruling, mental health providers have become more vigilant about assessing risk factors for violence (6). Despite this, challenges persist in implementation, including clarifying expectations regarding warning versus protection, and developing guidelines for accurately predicting dangerousness. The subjective nature of assessing dangerousness stems from the lack of reliable, clinically validated tools to predict violent behavior with certainty (1). Moreover, many individuals do not act on their threats, complicating the decision-making process. Existing risk assessment tools, such as the Historical, Clinical, and Risk Management-20 (HCR-20) scales, have shown some validity in inpatient settings (12), but their efficacy in outpatient or community settings remains limited, raising concerns about their utility in real-world situations where the duty to warn is most likely to be invoked (13).

The variability across states in implementing the duty to warn or protect further complicates clinical decision-making. Some states impose mandatory duties, requiring providers to warn or protect, while others adopt permissive approaches, offering providers discretion but limiting liability (8). This patchwork creates inconsistencies that can hinder the therapeutic alliance and expose providers to legal risks. A critical need exists for establishing a standardized, evidence-based, and universally accepted methodology for assessing risk and guiding intervention decisions.

One proposal is to develop a validated, clinical point-system scale that evaluates the likelihood of a patient acting on a threat. Such a tool would need to be rooted in current evidence and developed with input from experienced mental health professionals. Additionally, establishing national guidelines or federal legislation on the duty to protect could reduce disparities among states by providing clear, objective standards for when warnings or protective actions are warranted, thus minimizing legal hazards for providers (1, 15–17).

Many risk factors associated with violent behavior include previous diagnoses of antisocial or thought disorders, prior homicidal or suicidal ideation, lack of social support, access to weapons, and current psychotropic medication use. Other predictive factors involve the patient’s history of treatment rapport, responsiveness to therapy, specific threats to harm identified persons or locations, and the nature of their social environment. While these factors can inform risk assessment, none offer definitive predictions, underscoring the need for more precise, validated tools (1).

Effective application of the duty to protect hinges upon integrating clinical judgment with risk assessment instruments, emphasizing that no single method suffices for all cases. Ethical considerations demand careful weighing of the potential benefits of warning potential victims against the risks of inflaming an unstable situation or breaching confidentiality unnecessarily. The development and adoption of universally accepted tools and guidelines would enhance the consistency of decision-making, improve patient-provider relationships, and promote public safety.

In conclusion, nearly four decades after the Tarasoff ruling, there remains a significant gap in standardized procedures for implementing the duty to protect. Variability among states and the absence of highly reliable assessment tools hinder consistent application, potentially impacting both therapeutic relationships and legal standing of providers. Moving toward a unified, evidence-based framework supported by federal guidelines could help balance the competing interests of confidentiality and public safety, ultimately serving the best interests of patients and society alike.

References

• 1. Mills, MJ, Sullivan, G, Eth, S. Protecting third parties: a decade after Tarasoff. Am J Psychiatry. 1987;144(1):68–75.
• 2. Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 (1976).
• 3. U.S. Department of Health and Human Services. Health Insurance Portability and Accountability Act of 1996 (HIPAA). Public Law 104-191.
• 4. Buckner, F., Firestone, M. “Where the public peril begins”: 25 years after Tarasoff. J Leg Med. 2000;21(2):187–204.
• 5. McClarren, GM. The psychiatric duty to warn: walking a tightrope of uncertainty. Univ Cincinnati Law Rev. 1987;56(1):269–291.
• 6. Herra, PB. Psychotherapy as law enforcement. J Am Acad Psychiatry Law. 2004;32(1):91–100.
• 7. Fox, PK. Commentary: So the pendulum swings—making sense of the duty to protect. J Am Acad Psychiatry Law. 2010;38(4):474–476.
• 8. National Conference of State Legislatures. Mental health professionals’ duty to warn. 2015. Available at: https://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx
• 9. Ivgi, D., Bauer, A., Khawaled, R., et al. Validation of the HCR-20 Scale for Assessing Risk of Violent Behavior in Israeli Psychiatric Inpatients. Int J Psychiatry Relat Sci. 2015;52(2):121–130.
• 10. Kröger, C., Stadtland, C., Eidt, M., et al. The validity of the Violence Risk Appraisal Guide (VRAG) in predicting criminal recidivism. Crim Behav Ment Health. 2007;17(2):89–99.