EPs might have a legal “duty to warn” individuals if a patient threatens violence against them.
- State statutes vary.
- EPs are shielded from allegations of breach of confidentiality if they warn someone of a threat.
- EPs can be held liable if their failure to warn leads to a violent act.
EPs frequently encounter patients who were involved in violent acts or who threaten violence. “This raises questions about provider-patient confidentiality, and the circumstances in which that confidentiality can and must be broken,” says Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine in New Haven, CT.
State “duty to warn” or “duty to protect” statutes vary. “Furthermore, the duty to protect not only varies between states but across time,” Monico notes.1
The legal precedent behind state duty to warn statutes stems from the landmark 1976 case of Tarasoff v. Regents of the University of California. That case involved a graduate student who killed a woman after disclosing the threat to do so to his therapist. The therapist informed the campus police, but no one warned the eventual victim. The California Supreme Court stated that therapists have a duty to warn others who are in foreseeable danger from the therapists’ patients.
“Ultimately, during the rehearing of the case, the ‘duty to warn’ enunciated in the first ruling was expanded,” Monico says. The court stated that the therapist has a duty to “use reasonable care to protect the intended victim against such danger.”2
“Since the initial Tarasoff ruling, subsequent courts have expanded the duty to warn a potential victim into a more onerous ‘duty to protect,’” Monico explains. This may involve warning the potential victim, telling the police, or taking other steps that are reasonably necessary under the circumstances.
“There is no blanket federal duty to warn or protect. Instead, these duties are defined and codified into three distinguishable categories of state laws,” Monico says. These are:
- laws that mandate some duty to warn or protect;
- laws that allow a warning by protecting healthcare providers from liability for breach of confidentiality if they do so, but issue no requirement to issue a warning;
- those that offer no statutory or case law guidance.
“Interstate variability has resulted in a ‘duty to warn’ landscape fraught with legal risk and immunity limits, navigated by practitioners that typically seek to find the path of least resistance,” Monico says.3
EPs are shielded from allegations of breach of confidentiality if they do warn someone. EPs can be held liable if their failure to warn leads to a violent act, Monico adds.
“At least 20 states seem to extend the duty to include physicians who are not necessarily credentialed in psychiatry, as long as the physician purports to offer mental health treatment or represent a frequent point of contact for persons with psychiatric disorders,” Monico notes.4
- Johnson R, Persad G, Sisti D. The Tarasoff rule: The implications of interstate variation and gaps in professional training. J Am Acad Psychiatry Law 2014;42:469-477.
- Weinstock R, Vari G, Leong GB, Silva JA. Back to the past in California: A temporary retreat to a Tarasoff duty to warn. J Am Acad Psychiatry Law 2006;34:523-528.
- Soulier MF, Maislen A, Beck JC. Status of the psychiatric duty to protect, circa 2006. J Am Acad Psychiatry Law 2010;38:457-473.
- Shim RS, Koplan C, Langheim FJ, et al. Health care reform and integrated care: A golden opportunity for preventive psychiatry. Psychiatr Serv 2012;63:1231-1233.
- Edward Monico, MD, JD, Department of Surgery, Section of Emergency Medicine, Yale University School of Medicine, New Haven, CT. Phone: (203) 785-4710. Email: firstname.lastname@example.org.