A Matter of Law: Psychologists’ Duty to Protect

by Legal and Regulatory Affairs Staff

The legal mandate known as “duty to protect” or “duty to warn” is complicated and raises questions for many practitioners. It is helpful to be well aware of the obligations you may face as a practicing psychologist when seeing a potentially dangerous patient who threatens to harm another individual or individuals.

The information in this article is intended to help practitioners understand the duty to protect and how it relates to psychology practice. Being prepared to take necessary steps in situations where this duty applies may help protect you from legal problems.

As many psychologists know, the seminal legal case concerning a duty to warn is the Tarasoff case. In that case, the California Supreme Court ruled in 1976 that:

"When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another [person], he incurs an obligation to use reasonable care to protect the intended victim against such danger. ...[This duty] may call for [the therapist] to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or take whatever other steps are reasonably necessary under the circumstances."

Since the Tarasoff case, there have been many other legal decisions that have elaborated on and, in some cases, expanded the duty.

One of the most important steps a psychologist can take concerning his or her duty to protect is to find out what relevant state law exists. This encompasses case law (decisions made by courts), statutory law and perhaps common law. Many states have enacted duty to protect statutes.

If you live in a state that has a duty to protect statute, it is crucial to understand the particulars. Knowing the statutory details, which vary from state to state, will give a psychologist guidance on circumstances when the duty would arise and what actions the duty may entail.

As one example of how statutes vary, some state statutes may indicate that the duty to protect only arises when there is an identifiable victim and the intended violence is imminent. Other statutes may have broader parameters that do not require an identifiable victim. They may apply to a more general threat not limited to a specified person or persons — for example, when a client intends to commit serious violence in a public place, or when the client says he or she is going to harm someone but won’t tell the therapist who.

One standard element of state statutes is that, to trigger a duty to protect, the communication takes place as part of the therapeutic relationship. Another commonality among statutes is that duty to protect laws generally focus on the client: it is the client's potential for violence at issue. If a client is talking about other people who are violent, typically there is no duty imposed on the treating psychologist. (However, an important related development unfolded in 2004 in California. See the final section of this article, “Developments in California.”)

In addition to knowing when the duty to protect is triggered, you should know what the statute requires as necessary steps to take. These vary from reporting to the police and/or the intended victim to taking additional steps to prevent the violence, such as hospitalizing the client.

If a statute does not exist in your state to provide guidance, check to see if the courts have addressed this issue. If there are no court cases, psychologists can face a “gray area” about what to do, though a practitioner certainly cannot assume that he or she has no duty to protect at all. The duty may arise from "common law," which entails concepts that are not necessarily encoded but may apply if a case were ever brought to trial.

If your state does not have statute or case law:

• Talk with an attorney or other knowledgeable individuals to find out what the standard of practice is in your state and the likelihood a duty being imposed. An informed attorney should be aware of various factors that may have a bearing on your duty, including any related common law and what surrounding states do regarding duty to protect.

• Consider taking risk management workshops on the issue or speaking with your malpractice insurance carrier representative to gain useful information.

• If you are a member, check to see if your state psychological association also has pertinent information.

Whether or not your state has a statute or case law, practitioners still can be unclear about certain aspects of the duty to protect. For example, when is an intended violent act "imminent"? How do you evaluate if a client really intends to follow through on threats or is just "blowing off steam"? Consultation can be particularly helpful for addressing such questions.

As an example, a client talks regularly about how angry he is at his boss and that he'd like to shoot him. You have little experience with this kind of behavior so you are unsure how to evaluate the seriousness of the threat. It may be useful to consult with a psychologist or other clinician with expertise in this area to help you assess the situation and decide what steps may be advisable.

Consultation may assist you not only in taking appropriate steps, but it ultimately may support your actions should any problems arise from whatever steps you take. Documentation of your consultation and the reasoning for your decisions can be important, for example, if any legal actions occur.

Practitioners also should keep mind that duty to protect exists within a broader clinical context. The clinical interventions that a psychologist typically may use as part of treatment with a potentially violent client also may be helpful for addressing the issues underlying the potential duty to protect.

In addition to common legal decisions in recent years that have found a duty to protect, questions also have surfaced about what duties may arise in broader areas such as working with clients who are HIV-positive. For example, a psychologist may be treating someone who is HIV-positive and makes clear in a session that he is having unprotected sex. Psychologists should be aware of relevant state laws in such situations. Consultation with colleagues and attorneys is highly recommended on issues stemming from such treatment scenarios.

As mentioned earlier in this article, duty to protect laws typically do not impose a duty on the treating psychologist if a client is talking about someone who may be violent other than himself or herself. However, a related development unfolded a few years ago in California.

The Court of Appeal of California, Second Appellate District, Division Eight, ruled in November 2004 that a communication from a father of a patient to the patient's psychologist triggered the psychologist's duty to take action. In this case, the victim's parent sued the therapist for wrongful death based on professional negligence, alleging that the therapist's patient posed a foreseeable danger to the victim and that the therapist failed to discharge his duty to warn the victim or a law enforcement agency.

The patient's father told the therapist that his son was suicidal and had expressed a desire to harm his former girlfriend's new boyfriend. The patient voluntarily admitted himself to a hospital, but was released even though the therapist called the staff psychiatrist and recommended against release. The patient murdered the boyfriend and committed suicide.

The Court of Appeal held that a communication from a family member to a therapist made for the purpose of advancing a patient's therapy is a patient communication, and that a therapist's duty to warn a victim arises if the information leads the therapist to believe or predict that the patient poses a serious risk of grave bodily injury to another.

From a professional standpoint, the problem with this interpretation of the law is that it puts a psychologist in the position of having to assess a communication made by someone that the psychologist has not been treating or evaluating. That lessens the likelihood that a practitioner will be able to make determinations about credibility or intent. It also requires a health care professional to evaluate and make decisions about a client without having had first-hand communication from that client.

In summary, situations where violence is an issue in the therapy relationship can be complex and stressful. Knowing the relevant laws in your state, while also consulting with colleagues and other knowledgeable professionals, can help you make appropriate decisions about your duty to protect.

This article is the third in a series, “A Matter of Law,” about the practical effect of various laws and regulations on practicing psychologists.

PLEASE NOTE: Legal issues are complex and highly fact-specific and require legal expertise that cannot be provided by any single article. In addition, laws change over time. The information in this article should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions regarding individual circumstances.