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10.6 Duty to Warn

A counselor’s duty to warn, also called the duty to protect, is based on the Tarasoff versus Regents of the University of California ruling, previously discussed in chapter 7 (English, 1990). Counselors can break confidentiality when their clients express an apparent or suspected threat to harm another person or to commit suicide (English, 1990). In these situations, counselors have a legal and ethical obligation to involve authorities to warn or check in on the safety of third parties (English, 1990). The limitations to confidentiality in counseling are explored during informed consent with clients and their parents.

To constitute a duty to warn, each of the following three criteria must be met (Ford-Sori, 2015):

  • Reasonable likelihood that the client will commit physical harm. This can be based on direct communication or the counselor’s reasonable suspicion.

  • Presence of a professional relationship with fiduciary responsibilities. The duty to warn is part of that fiduciary responsibility. This explains why other professions or roles are not legally mandated reporters.

  • A victim exists. This can be a third party or the client.

As indicated in the criteria, the duty to warn is not warranted if clients report past harm or past intent to kill others (English, 1990). Instead, confidentiality is broken in circumstances where imminent harm occurs in the present or future (Ford-Sori, 2015). Of note, counselors have no obligation to report a person’s HIV/ AIDS status, and mishandling a person’s status can cause a significant rupture in the therapeutic relationship. Clients’ confidentiality and privacy regarding their HIV/ AIDS status are protected by law and are also not addressed in professional ethical codes (Ford-Sori, 2015).

What actions do counselors take to fulfill their duty to warn? Generally, they take reasonable steps to notify the intended victim, family members, law enforcement, and EMS (Ford-Sori, 2015). There are special considerations when working with the adolescent population; Counselors have an ethical, though not legal, obligation to involve parents when concerns around suicidal intent, plan, or harm to another person arise (Ford-Sori, 2015). Other actions may include contacting EMS to triage an assessment at a hospital or having the child placed on a 24-hour suicide watch (Ford-Sori, 2015). For adolescents, there are no legal protections against involuntary commitment or participation in treatment, as parents ultimately make this decision (Koocher, 2003).

On the contrary, adult clients cannot be involuntarily hospitalized without a court order (Koocher, 2003). Part of counselor competency here is evaluating nuances around these family decisions. Young people being hospitalized against their will can bring a variety of adverse effects, including added stress of seclusion, potential exposure to abuse/ trauma in treatment settings, and underlying messaging to a developing person of being committed (studies show “I am bad,” “I can’t be helped,” etc. are common internalized messages in youth), the stigma around mental health concerns, and separation from family at a difficult time (Koocher, 2003). On the other hand, parents often, though not necessarily, are acting in the best interest of the child and family, and sometimes the child’s illness and developmental stage prevent them from seeing necessary steps to protect their safety. Counselors consider these factors on a case-by-case basis and thoroughly document all steps taken.

Harm to Oneself

Safety concerns and suicidal ideation or intent fall under a counselor’s duty to warn. Concerns about self-harm and suicidality are common among adolescents (Ford-Sori, 2015). Risk factors within this population include mood disorders, parental psychopathology, substance use disorder, family history of mental health concerns, loss of a parent due to death or divorce, family conflict, frequent moving, bullying, identity exploration and questions, and exposure to abuse/ trauma (Ford-Sori, 2015). When working with adolescents diagnosed with depression, counselors should adopt a preventative lens and proceed with assessing the child’s safety, creating and documenting a thorough safety plan, and involving necessary people (Ford-Sori, 2015). Counselors have an ethical duty to involve parent(s)/ guardian(s) when safety concerns arise, which can be related to self-harm and any unsafe use of substances (Ford-Sori, 2015). For example, if a client’s frequency of substance use increases, the counselor has an ethical duty to involve the parents due to their legal obligation to safeguard their children. The best practice is to involve the client in relating the information to the parent(s)/ guardian(s) and seeking additional help, such as law enforcement or 911, as doing so can help build autonomy and self-determination and protect the therapeutic relationship.

Key Takeaways

  • Counselors’ duty to warn, derived from Tarasoff v. Regents of the University of California, applies when there is a reasonable likelihood of harm, a fiduciary relationship, and an identifiable victim.
  • Duty to warn applies to imminent harm; past acts or intent to harm do not warrant breaking confidentiality.
  • Confidentiality around HIV/AIDS status is protected by law and ethical standards, with no obligation to disclose.
  • Actions to fulfill the duty to warn include notifying intended victims, parents (for adolescents), law enforcement, or EMS and documenting steps thoroughly.
  • In cases of self-harm or suicidality, counselors assess risk, involve parents or guardians, create safety plans, and may collaborate with external resources to ensure client safety.

 

License

Ethical Practice in Co-Occurring Substance Use Disorder and Mental Health Counseling Copyright © by Tom Hegblom; Zaibunnisa Ahmed; London Fischer; Lauren Roelike; and Ericka Webb. All Rights Reserved.