Feature Article

Duty to Warn: Understanding When to Breach Confidentiality

By Robin Sheridan, JD, MILR


Employee assistance professionals are keenly aware of the obligations of confidentiality to their clients. Not as well known, however, is when they are obligated by law to breach confidentiality. The “duty to warn” is an exception to normal confidentiality standards, and, depending on a practitioner’s location, license, and situation, may mandate that EA professionals warn third parties whom they believe their client may harm (or of possible client self-harm).

State Variations in the Law
Each duty-to-warn law articulates the specific conduct that triggers the action required by EA professionals to satisfy the duty. These laws vary significantly not only from state to state but also depending on the professional’s applicable license. Therefore, it is critical that the EA professional understand his or her duty under the laws of the state(s) in which they practice.
 
Information Triggering the Duty to Warn
The standard for reporting varies. For example, Massachusetts law mandates that mental health professionals report, “an explicit threat to kill or inflict serious bodily injury upon a reasonably identified victim or victims, and the client has the apparent intent and ability to carry out the threat.”
Texas laws permit a mental health professional to report, “a probability of imminent physical injury by the client to the client or others or . . . a probability of immediate mental or emotional injury to the client.”

Who Must Be Warned
Some states require EA professionals to notify only the potential victim or only law enforcement personnel, while others impose a duty to warn the potential victim and law enforcement or to perform another action entirely. EA professionals in Massachusetts, for example, may discharge the duty to warn by arranging for voluntary or involuntary hospitalization of the client in lieu of a warning.

Sources of Threatening Information
In some states, only information received directly from the client triggers the duty to warn. In others, the duty is also triggered when a client’s family member reports the client’s threats to EA professionals.

Notable Cases
The following cases illustrate circumstances that precipitate duty to warn, the differences of that duty under various state laws, as well as the complicated aftermath of whether to make the decision to warn.

Emerich v. Philadelphia Center for Human Development, Inc. (Pennsylvania, 1998)
Gad Joseph was receiving treatment from a counselor, while his live-in girlfriend, Teresa Hausler, was also undergoing treatment for mental issues at the same facility. The counselor was aware that Joseph and Hausler lived together and that Joseph had abused her. As a result, she ended her relationship with Joseph. Joseph told the counselor that he wanted to kill Hausler.

The counselor immediately scheduled a therapy session with Joseph, who later indicated that he would not harm Hausler. She called the counselor to inform him that she would be returning to gather her clothes from her old apartment, but the counselor warned her not to return and instead to leave immediately. Hausler ignored the warning and her former boyfriend shot and killed her upon entering the apartment.

The court found in favor of the counselor, ruling that the counselor had a duty to warn when a specific and immediate threat of serious bodily injury was conveyed by the patient regarding a readily identifiable victim. In this case, the court held that the counselor’s warning to Hausler satisfied the mental health professional’s duty to the victim.

Ewing v. Goldstein (California, 2004).
A licensed marriage and family therapist (MFT) treated former police officer Geno Colello for his work-related injuries as well as a recent breakup with his wife. During a call with his therapist, Colello admitted to having suicidal thoughts, and the therapist asked to speak with Colello’s father, who had reported that Colello had lost his desire to live, and could not handle seeing his ex-spouse date another man, (Keith Ewing), and that Colello considered harming Ewing.

Collelo was voluntarily committed. The next morning, Colello’s dad advised the therapist of his son’s upcoming release. The therapist phoned the admitting psychiatrist, urging him to keep Collelo under observation for the weekend. The psychiatrist declined and discharged him. The next day Colello murdered Ewing and then killed himself. Ewing’s parents filed a wrongful death suit against the therapist, alleging he had a duty to warn their son of the risk Colello posed. The court rejected the therapist’s argument that the threat of violence did not come from the patient himself and held that threats communicated by a patient’s family constitute “patient communications,” triggering the duty to warn.

Volk v. DeMeerleer (Washington, 2016).
Jan DeMeerleer, the outpatient client of a psychiatrist, reported suicidal and homicidal thoughts to the psychiatrist during treatment for bipolar and associated disorders, although he never named nor indicated a specific intention to harm a person. Later, DeMeerleer killed his former girlfriend and her son before returning home and killing himself.

The former girlfriend’s estate sued, alleging that the psychiatrist breached his duty of reasonable care for any foreseeable victims because there was a special relationship between the psychiatrist as a mental health professional and DeMeerleer as a patient.

The court ruled that a psychiatrist may be liable for homicides committed by a client if the harm was foreseeable, even though the client never identified the victims as targets of violence. The court held that duty exists in outpatient settings as well, expanding the potential legal liability for psychiatrists, increasing the breadth of individuals to whom a duty may be owed, and requiring providers to dive deeper into statements made by patients to assess any potential threats and the likelihood of violence.

Thus, duty to warn identifiable third parties now entailed a broader, more general duty to protect the public.

What Would You Do?
As described in the previous cases, numerous factors can affect the scope of an EA professional’s duty to disclose. To illustrate this point, consider how EA professionals in several different states might respond to the same statement made by a client. 

Statement #1: “My supervisor is out to get me. I have a gun and am thinking of using it.”
Statement #2: “My co-worker told me he is really angry at his supervisor. He is ex-military and I know he has guns at home. I’m worried he is going to hurt someone.”

In the state of Colorado
Research and analysis prepared by attorney Brian Sabey, (720) 282-2025, BrianSabey@hallrender.com

The duty to warn is established in Colorado Revised Statutes 13-21-117, which provides that mental health providers have no liability for failing to warn or protect individuals against potential violence by persons receiving treatment, “except where the patient has communicated to the mental health provider a serious threat of imminent physical violence against a specific person or persons, including those identifiable by their association with a specific location or entity.”

In cases where there is a duty to warn, providers must, “make reasonable and timely efforts to notify the person or persons . . . [who are] specifically threatened, as well as to notify an appropriate law enforcement agency or to take other appropriate action.”

One Colorado case is particularly useful in this matter. In McCarty v. Kaiser-Hill Co., a patient called his psychologist at 1:30 a.m. and described his strong negative feelings towards his supervisors. He expressed concern that he might not be able to control his anger. The patient was feeling “sort of homicidal,” and mentioned that he knew martial arts and, if provoked, could kill someone. 

The patient expressed that, “They don’t deserve to die, but they do deserve to have their ass kicked.” The psychologist determined that this communication constituted a serious and imminent threat triggering the psychologist’s duty to warn, and accordingly, he warned the patient’s supervisor. The patient was fired. The patient then sued the psychologist, claiming he had violated confidentiality. The court rejected this claim, finding instead that under these facts, as a matter of law, the psychologist had a duty to warn the supervisor.

In light of the McCarty decision, it is likely that a duty to warn would arise if an employee were to state to his EA professional, “My supervisor is out to get me. I have a gun and am thinking of using it.”

The more difficult case is Statement #2. The language of the statute can reasonably be read to mean that “the patient” who communicates the threat must be the same individual who poses the threat: the statute provides for immunity from liability for failing, “to warn or protect any person against a mental health patient’s violent behavior…except where the patient has communicated [a threat].”

However, Colorado case law suggests a broader interpretation under which any communication of a patient’s threat, whether from the patient directly. or from another patient, may be sufficient to trigger the duty. In Halverson v. Pikes Peak Family Counseling & Mental Health Center, a rape victim brought a case against the mental health clinic where she was a patient. 

While in treatment, she disclosed to the clinic’s employees that she felt threatened by her assailant’s words and actions. The trial court dismissed her complaint, interpreting Colorado law to require that the threats be communicated to the mental health professional by the assailant.

The appellate court reversed the decision, reinstating the victim’s claim, reasoning that if the prospective victim communicates the violent threat of a fellow patient, this triggers the duty to warn, and stated that the duty to warn or protect applies, “when the violent patient’s threats have been communicated to the health care provider.”  Accordingly, the EA professional's duty under Statement #2 may turn on whether or not the co-worker was also a patient of the EA professional.

In the state of Indiana
Research and analysis prepared by attorney Charise Frazier, (317) 977-1406, CFrazier@hallrender.com, with assistance from law clerk Amanda Ray.

Generally speaking, mental health service providers, including but not limited to licensed social workers, have a duty to warn if the patient communicates an actual threat of physical violence against an identifiable victim or if the patient makes a statement indicating an imminent danger that they will use physical violence to harm or cause personal injury to others.

Statement #1 will likely trigger the EA professional’s duty to warn because it constitutes a statement indicating an “imminent danger” to the client’s supervisor. Indiana case law does not require that the client use affirmative language (such as I “will” use a gun to harm my supervisor) in their communications to their mental health provider. In this case, the client’s intent that they are “thinking” of using the gun to harm their supervisor is sufficient to trigger the EA professional’s duty to warn. For example, in Dennie v. Methodist Hospitals Inc., a patient’s statement that he “could” take his gun to kill everyone in the room triggered the provider’s duty to warn.

Accordingly, the counselor must warn by using any of the following options under the statute. The options include: 

* reasonable attempts to communicate the threat to the victim;
* reasonable efforts to notify a police department or other law enforcement having jurisdiction in the patient’s or victim’s place of residence;
* filing a civil commitment under IC 12-26; 
* reasonably preventing the patient from using means of harm until law enforcement can take custody of the patient; and
* reporting, within a reasonable period of time after receiving knowledge of the threat, to a physician or psychologist who is designated by the employer of a mental health service provider as an individual who has the responsibility to warn.

As for Statement #2, it would likely not trigger Indiana’s duty to warn requirement. Under Indiana law, the counselor only holds a duty to warn where the person uttering the threat is their patient. No liability exists for mental health service providers where the statement is hearsay. 

In the state of Washington
Research and analysis performed by attorney Stephen Rose, (425) 278-9337, SRose@hallrender.com

Relying on Section 315, the court in Petersen v. State held that there is a duty to warn the potential victim of a psychiatric patient when, “a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct.” Stated another way, once a special relationship exists between the EA professional and his/her patient, the EA professional owes a duty of reasonable care to any foreseeable victim of the patient. 

A court will consider the following factors to determine whether a duty to warn should be imposed on the EA professional: 

* the EA professional’s ability to control the patient; 
* the public’s safety from violent assault;
* the difficulty inherent in attempting to predict whether a patient represents a substantial risk of harm to others;
* the goal of placing the mental patient in the least restrictive environment and safeguarding the patient’s right to be free from unnecessary confinement; and
* the social importance of maintaining the confidential nature of psychotherapeutic communications. 

With respect to Statement #1, the EA professional likely has the “special relationship” which triggers the duty to warn, which under Washington law is a duty of “reasonable care.” Under this factual scenario the patient has expressed a homicidal thought against a particular individual, which probably makes injury to that individual foreseeable. This scenario likely requires the EA professional to warn the supervisor.

In Washington, the duty to warn is based on the relationship between the professional and the potential actor. In Statement #2, the statement is of a person, who is not the potential actor, speculating what someone else might do. Since there is no “special relationship” between the EA professional and the potential actor, there is probably not a duty to warn in this case.

Practical Takeaways

* Be transparent with clients. Obtain a written informed consent or statement of understanding at the initiation of treatment, making sure the exceptions to confidentiality are clearly explained to, and acknowledged by, the client.

* Know the law in your jurisdiction. First, determine which states’ laws apply, including potentially the state(s) where you are licensed and the state where the client receives treatment. Second, if a duty to warn exists, know which and whose statements or conduct trigger the duty. And finally, consider the standards for reporting.

Note, also, that the duty to warn does not absolve EA professionals of other client confidentiality obligations. When the duty is triggered, provide only the information necessary to warn the third party and/or authorities consistent with applicable laws.

* Consult counsel. The stakes are high for the potential victim, the client, your employer, and yourself. Breach of the duty to warn could result in professional liability for failing to appropriately treat the client who causes harm as well as liability to the individual(s) harmed, which can include the client. If you suspect that confidentiality should be breached, contact an attorney familiar with health law in your state(s).

* Document. In healthcare, if it isn’t documented, it didn’t happen. Document the time, location, nonverbal behavior, and actual statements of the client as well as any information provided by others about the client. Document your considerations in determining whether to warn and identify anyone you consult. Document the time, phone number, recipient and substance of your warnings, if made. Thoroughly document any responses, actions, or lack of response.

Editor’s note: The recommendations provided in this article are for educational purposes only and are not to be construed as actual legal advice. Always consult with a local attorney regarding duty-to-warn law and circumstances. Authors in this article are attorneys with Hall, Render, Killian, Heath & Lyman, P.C. in Milwaukee, Wis. For more information, contact Robin Sheridan at (414) 721-0469 or email her at rsheridan@hallrender.com. 

Robin Sheridan, JD, MILR has experience in all aspects of employment law and human resources management, including hiring, discipline, discharge, drug testing, disability accommodation, union avoidance, discrimination and civil rights claims, implementation of family and medical leave and wage and hour laws. She was admitted to the Bar in Wisconsin, Michigan, Minnesota, and Arizona.