7.10 Duty to Warn/ Duty to Protect
Counselors have ethical and legal obligations to protect people whom they learn during counseling discourse are at risk of violence. This is called duty to warn (though one may also see it as duty to protect) and includes harm to oneself (i.e., suicidality or safety concerns) or a third party. In learning this information, counselors must take reasonable steps to warn the intended victim and involve others who can keep them safe. This usually entails contacting law enforcement and EMS, though it can involve others depending on the setting. Counselors may communicate with law enforcement to reach intended third parties, with EMS to perform a safety check or transport a high-risk client to the hospital, with school authorities to warn about intended harm within a school setting, or with a client’s emergency contacts/ housing contacts. They also use thorough documentation to ensure all duties are met and protect their clinical license(s). Ethical guidelines are outlined in the ACA and NAADAC codes of ethics (ACA, 2014; NAADAC, 2021). Legal guidelines are outlined in state law.
In 1976, duty to warn obligations were enacted into California state law by the landmark case Tarasoff vs. Regents of the University of California (Younggren, 2008); See Box 7.4 for details on this case. Many states followed suit and established their own Tarasoff warnings, so counselors must consult state statutes for guidelines in their jurisdiction. The Tarasoff ruling marked the beginning of counselors having ethical and legal responsibility for a person who was not their client (Younggren, 2008). Overall, this case allows counselors to breach confidentiality to protect potential victims outside of their caseload from harm or violence (Younggren, 2008).
Tarasoff vs. Regents of the University of California (1976)
In October 1969, Prosenijit Poddar killed a young woman named Tatiana Tarasoff. Poddar was a therapy client of Dr. Lawrence Moore at the University of California at Berkeley who shared an intention to kill Tarasoff with Dr. Moore 2 months before her murder. Dr. Moore notified campus police, who detained Poddar for a short time before releasing him based on being “rational”. Neither Dr. Moore nor his superior Dr. Harvey Powelson, took further action to protect Tarasoff.
The courts ultimately claimed that the therapists had a duty to warn and protect Tarasoff of Poddar’s intended actions. They were not immune from liability for her murder. Overall, this case solidified that counselors have a legal duty to break confidentiality and to take reasonable steps (ie. notify police, victim, etc.) to warn and protect intended victims from threatened or reasonably suspected danger. This is how the duty to warn guidelines were codified into law. This also applies when counselors break confidentiality to protect their clients from threatened harm to themselves (Tarasoff vs. Regents of the University of California, 1976).
Box 7.4. Tarasoff vs. Regents of the University of California, 1976 Case
A counselor’s duty to warn obligation is time-sensitive. They break confidentiality for the intended purpose of keeping humanity safe, which can include their client and an endangered third party. Once the situation is managed and safety concerns are no longer relevant, a client’s confidentiality is reinstated and maintained (Younggren, 2008). The client’s privilege was never broken, as no information or records related to a duty to warn event could be used in legal proceedings unless the client consented (Younggren, 2008). Situations like this illustrate an important difference between confidentiality and client privilege. Confidentiality is an ethical concept that establishes the significance of personal privacy in the counseling relationship (Gorshkalov, 2023). On the other hand, privilege is a legal concept that governs a person’s right to their information and decision to keep it out (or bring it into) court. In general, counselors should understand the legal considerations for their jurisdiction, as they may need to advocate for clients when legal systems are involved.
As mentioned above, counselors are not the judge or the jury; their role is not to determine consequences for a client’s past actions. Their role, instead, is to build therapeutic relationships and take reasonable steps to protect human safety. Therefore, counselors consider the timing of a client’s threatened or suspected harm to self (completing safety assessments) and to others. If a person’s risk of being harmed is imminent in the present or foreseeable future, they act to manage those concerns as outlined above. If clients divulge past acts of harm or crime, counselors respect confidentiality and do not report. Sharing past harm or criminal activity does not fall under duty to warn, which would breach confidentiality. Additionally, it would be unethical and unaligned with counseling virtue ethics, as clients must be able to trust confidentiality in sharing sensitive information they may fear sharing with others out of possible legal consequences (Walfish, 2010). Counselors respond by engaging in ethical practice and navigating revelations within the context of the therapeutic relationship. Counselors must engage in careful countertransference management in these situations and would benefit from seeking supervision and consultation (Walfish, 2010).
HIV Status
Some confusion exists around the extent of a counselor’s duty to warn, particularly as it pertains to a client’s positive status for human immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS). Do counselors have a duty to warn sexual partners of a client’s positive HIV/ AIDS status? The short answer is no, as doing so would constitute a breach of confidentiality, leaving counselors liable (Harding, 1993). Instead, counselors value and protect client privacy and navigate this information within the context of the therapeutic relationship (Harding, 1993). Certain factors must exist for the Tarasoff ruling to apply and warrant breaking confidentiality. These include the presence of a professional-client/ counselor relationship, a communicated serious and pending threat of physical violence toward another, and a reasonably identifiable threat to a potential victim (Harding, 1993). While some may find gray areas, concerns related to HIV/ AIDS do not constitute physical violence, and Tarasoff does not apply. Additionally, there are no laws pertinent to confidentiality around HIV/ AIDS status for counselors to look into, so they adhere to ethical codes, which do not address a person’s status (Harding, 1993).
Key Takeaways