Duty to Warn and Protect

The duty to warn refers to a counselor's obligation to warn identifiable victims. The duty to protect is a counselor's duty to reveal confidential client information in the event that the counselor has reason to believe that a third party may be harmed. The understanding of a counselor's duty to warn begins with acknowledgment of the difference between the ethical responsibility of confidentiality and the legal term of privileged communication. Confidentiality is a demonstration of respect bestowed on the client by the counselor wherein information between the two will not be divulged by the counselor. Privileged communication is a legal doctrine (also known as therapist-patient privilege) that declares client-counselor therapeutic communications are to be kept private by the counselor. The client, rather than the counselor, owns this legal privilege and generally, only the client has the right to release information from the relationship. Privileged communication is not available in all states and it is not absolute. An exception exists, for example, when a client threatens to harm him- or herself or others. The American Psychological Association's and the American Counseling Association's Code of Ethics recognize exceptions and note that counselors are not [Page 576]required to maintain confidentiality when clients pose a threat or risk to identifiable others.

The legal precedent for establishing a duty to warn and a duty to protect was set in the wrongful death case of Tarasoff v. Regents of the University of California. Tatiana Tarasoff was murdered by Prosenjit Poddar, a student from India enrolled at the University of California. Upon the rejection of Ms. Tarasoff's affection, Mr. Poddar became distraught and sought counseling at the university student counseling center. During therapy, the psychologist working with Mr. Poddar became concerned that Mr. Poddar intended to harm Ms. Tarasoff. The psychologist, along with a psychiatrist, unsuccessfully attempted to have Mr. Poddar committed. The psychologist also advised the campus police of his concerns. The campus police questioned Mr. Poddar, but he assured them he would not harm Ms. Tarasoff and he was subsequently released. Mr. Poddar terminated therapy and eventually went to Ms. Tarasoff's home, shot her with a pellet gun as she ran from the house, and ultimately killed her with a kitchen knife.

Ms. Tarasoff's parents filed wrongful death suits against the university as well as the psychologist and the psychiatrist because of their negligence to warn Ms. Tarasoff of the imminent danger posed by Mr. Poddar. The defendants won in the lower court, but the case was appealed and the original ruling was overturned. In overruling the lower court in 1974, the California Supreme Court issued a ruling that established a duty for therapists to warn potential third-party victims. Moreover, the California Supreme Court extended therapists' responsibility to take reasonable steps necessary to protect intended victims, thereby establishing duty to protect in the 1976 rehearing of the Tarasoff case. The court held that danger to the public supercedes the protective privilege of a therapeutic relationship.

The duty to warn and protect has been upheld in other states and has become the standard of practice for mental health professionals. The duty to protect continues, however, to be open for interpretation throughout the United States. In deciding whether duty to protect is present under the law, judges generally consider whether (a) there was a special relationship and the client communicated an intended threat directly to the therapist, (b) harmful action (such as severe injury, death, or psychological harm) was foreseeable and imminent, and (c) the victim was identifiable. Different interpretations in various jurisdictions can result in apparent inconsistencies. Although many cases have issued rulings consistent with Tarasoff, others have resulted in rulings that allow a cause of action to a “foreseeable” victim who may or may not have been identifiable by a therapist.

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