The History and Purpose of Duty to Warn in Therapy

Mental health professionals have a code of ethics that requires them to keep information revealed during therapy sessions private. However, there are some instances in which this code can (or must) be breached. One is the 'duty to warn,' which either mandates or allows disclosure if a client might become violent.

Two court cases played a pivotal role in the development of a duty to warn, the first establishing this obligation and the second expanding it. Although it was created with the intent to prevent physical harm, not everyone agrees with breaking client confidentiality—even in these types of circumstances.

What Is the Duty to Warn?

The duty to warn involves disclosing a patient or client's confidential information if they pose a danger to themselves or others. For some therapists and counselors, the decision to disclose without consent is an ethical consideration. For others, it is a legal obligation.

In most states, mental health professionals have a legal duty to warn which mandates them to break confidentiality if they suspect that a client may become violent. Others permit but do not require disclosure in these situations, with a handful of states having no duty to warn or only allowing it in very limited circumstances.

The American Psychological Association (APA) offers therapists guidance under its "Ethical Principles of Psychologists and Code of Conduct," which allows for disclosure without consent if it will protect the client or others from harm. These guidelines indicate that private information can also be revealed if the client has given permission for disclosure or as permitted by the law, such as:

• When it is necessary to provide professional services
• When obtaining a consultation from other professionals
• To obtain payment for services

History of a Legal Duty to Warn

A few landmark legal cases have established and expanded upon a therapist's legal obligation to breach confidentiality if they believe a client poses a risk to themself or others.

Tarasoff v. Regents of the University of California (1976)

A legal duty to warn was first established in Tarasoff v. Regents of the University of California (1976). This case involved Tatiana Tarasoff and Prosenjit Poddar, who met in 1968 as students at the University of California, Berkeley.

Poddar came to believe that the two were in a serious relationship, a view that was not shared by Tarasoff. When Tarasoff expressed that she was not interested in a romantic relationship, Poddar began to stalk her and experienced a serious emotional breakdown.

In 1969, Poddar became a patient of psychologist Dr. Lawrence Moore at UC Berkeley's Cowell Memorial Hospital. After expressing intentions to kill Tarasoff, Moore alerted campus police and gave his opinion that Poddar required hospitalization, posing a danger to himself and others. Poddar was detained briefly but appeared rational and stable, leading police to release him after promising that he would stay away from Tarasoff.

Neither the police nor Poddar's therapists warned Tatiana Tarasoff or her family of the threats. Poddar continued to stalk the young woman and on October 27, 1969, he went to the Tarasoff home. After a confrontation, Tarasoff screamed for help, at which point Poddar shot her with a pellet gun.

She fled into the yard, but Poddar caught her and proceeded to stab her to death with a kitchen knife. After his arrest, Poddar was ​diagnosed with paranoid schizophrenia, the same diagnosis Moore had initially made.

Tarasoff's parents filed a lawsuit against the therapists and the University of California, Berkeley. They contended that their daughter should have been warned of the danger, while the defendants held that their responsibility was to maintain the confidentiality of their client.

The lower courts agreed with the therapists and university, dismissing the case. The Tarasoffs filed an appeal to the California Supreme Court. While the case was eventually settled out of court for a significant sum, the higher court's 1976 ruling specified that confidentiality was secondary to the public's safety.

Jablonski by Pahls v. United States (1983)

A ruling made in the 1983 case of Jablonski by Pahls v. United States expanded a therapist's duty to warn. Specifically, it established a mental health provider's obligation to review a client's previous treatment records to assess whether they may be a threat to themselves or others.

In this case, a therapist conducted a risk assessment of a client by the name of Philip Jablonski but did not review Jablonski's history of violence. As a result, the client's girlfriend, Ms. Kimball, was not warned about Jablonski's previous violent behavior. When Jablonski was released, he killed Kimball.

Ewing v. Goldstein (2004)

In 2004, the duty to warn was expanded to include threats of violence revealed to a therapist by a client's family members. This was a result of Ewing v Goldstein

Dr. David Goldstein was seeing a client by the name of Geno Colello. Colello was going through a rough breakup, his former girlfriend now dating a man named Keith Ewing. After asking his father for a gun and being refused, Colello stated that he would "kill" the "kid" dating his former love interest.

Colello's father told Goldstein of the threat, upon which Goldstein recommended that the father have his son hospitalized. No one warned Ewing or law enforcement of the threat and, after being released the next day, Colello shot Ewing and then himself.

Duty to Warn Examples

It's important to note that the duty to warn obligates therapists to only inform individuals and authorities of specific threats. They are not to discuss or disclose the details of the patient's care or treatment. Any information that is not relevant to the immediate threat is to remain confidential.

There continues to be a debate about what exactly constitutes a credible threat. Direct, specific plots to harm to kill another individual would clearly trigger a duty to warn. In other cases, a therapist must use their best judgment to determine if a client presents a serious danger.

A few examples of times when a therapist would need to consider their ethical and/or legal duty to warn include:

• A client states that they want to kill a colleague, but does not name a specific individual.
• A patient says that they fantasize about killing a specific person, but then states that they would never actually do it.
• A client has the means to commit harm, such as owning firearms, and expresses extreme anger toward a specific individual but never makes a specific threat.

An assessment of a potential threat is often considered in the same way that a therapist would assess a client's suicide risk. The therapist might consider the seriousness and specificity of the threat itself, the client's past history of violent or aggressive behavior, and recent symptom progression.

Opposition to the Duty to Warn

While it has been decades since the legal duty to warn was first established, it remains a topic of debate. In 2013, Donald N. Bersoff, who was president of the APA at the time, suggested that the Tarasoff ruling was a poor decision.

Bersoff stated that client confidentiality was paramount and breaching it undercut the trust that clients place in mental health providers. He added that breaking a client's confidentially should only occur as a last resort.

Some suggest that had Moore not reported the threats, Poddar may have remained in treatment, potentially recovering and not killing Tarasoff. However, there is simply no way to know if the situation may have played out in this way.