Tarasoff v. Regents of the University of California | “Duty to Warn”


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The case of Tarasoff v. Regents of the University of California (1976) is generally regarded as the leading case regarding the issue of “duty to warn.”  The duty to warn concept implies that we, as mental health professionals, have “the duty to protect third parties from harm” and requires “disclosure of threats of harm to others when the provider has a reasonable basis to believe the threat is real and harm could result.”  Specifically, the California Supreme Court ruled “that psychotherapists who determine, or reasonably should determine, that their patients are likely to be danger to identifiable third parties have a duty to take whatever steps are reasonable necessary to protect the potential victims.”  (King & Kramer, 2008)

The duty to warn mandate does not come without limitations and is always subject to interpretation by the states in which we practice.  For example, in Tedrick v. Community Resource Center, Inc. (2007), the Illinois Supreme Court rejected logic of the Tarasoff judgment determining that mental healthcare providers could not be held liable for failing to protect a non-patient third party.  “The providers, in treating the patient, did not undertake to render services for the wife’s protection and, therefore, owed no duty to protect her from the patient’s violent acts.”  In short, the absence of a relationship with the murdered wife rendered the provider blameless.  (“Case law developments”, 2009)  This is the exception to the rule, however.  Most states recognize the “duty to warn” mandate; most clinicians consider it a best practice even in situations where it is not mandatory.

Regardless of the jurisdiction in which we practice, some level of knowledge regarding risk assessment is required.  The purpose of risk assessment is to prevent violence, not to predict it.  Thus, “risk assessment involves estimating the probability of a future event based on secondary, indicator variables.”  (Hanson, 2009, expression Headnote)  “Dvoskin and Heilbrun (2001) suggest that risk should be separated into three separate components: likelihood (probability), imminence, and severity of outcome.  Probability is best defined by actuarial methods; imminence by patterns of violence, statements, plans and life circumstances; and severity by prior history of violence.”  (Norko & Baranoski, 2008, p. 87)  We can visualize what this more informal assessment of risk might look like through the eyes of a typical business.  Business executives will typically use the following six perspectives to analyze a threat in the workplace… method used to communicate the threat (verbal, nonverbal, written, email, etc), credibility (genuineness), lethality (gun vs. fistfight), process (intentions), specificity (target, time, place, means), and type of threat (direct, conditional, veiled).  (Myer & Casile, 2010)

Although an informal assessment of risk might have better luck predicting the weather, this remains the predominate method used by all mental health professionals today to determine if more formal assessment is needed.  In counseling, this informal method might manifest in some of the following questions… Has the client been violent in the past?  Does the client have the means and a plan to perform future violence?  Is there a specific target or is the target more generalized?  What are the client’s living conditions like?  Does the client use or abuse drugs or alcohol?  Are there any foreseeable events or stressors that might invoke an incident, like a divorce for example?  In short, “risk assessment is a process concerned with a variety of issues- risk for what, when, where, and to whom- not just the mere prediction of future violence.”  (Haggard-Grann, 2007, expression Summary)  If a client is determined to be at an elevated level of risk, more formal assessment may be necessary to qualify and quantify the level of risk.

“In high stakes evaluations, such as civil commitment procedures for sexual offenders, most evaluators now consider structured risk tools to be essential.”  (Hanson, 2009, expression Overview of Risk Assessment Practices)  Given the recent prevalence of school related violence, the assessment of risk in student populations is of increasing interest to school counselors and private mental health practitioners alike.  “School violence may range on a continuum from subtle behaviors (e.g., teasing, name calling, bullying, and other forms of intimidation and harassment) to severe actions, such as physical fights and shootings.”  (Bernes & Bardick, 2007, expression ASSESSMENT OF VIOLENCE RISK)  In their comprehensive review of school risk assessment, Bernes and Bardick (2007) advocate the use of the Structured Assessment of Violence Risk in Youth (SAVRY).  SAVRY is a risk assessment tool composed of 24 items in three risk domains (historical, social/contextual, and individual/clinical factors).

Determining the “seriousness” of a threat is no easy matter.  Although we should continue to informally access risk, it is increasingly important that we use standardized, normalized tests to justify decisions in high risk cases.  This is especially important because there are potential legal and ethical ramifications regardless of which option we choose, action or inaction.  Having good justification, documentation, and logic behind our professional decisions will protect us, and perhaps more importantly our clients, from the adverse effects of poor risk assessment.

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References

Bernes, K. B., & Bardick, A. D. (2007, Apr). Conducting adolescent violence risk assessments: A framework for school counselors.  Professional School Counseling, 10(4), 419-428. Retrieved from http://ezproxy.bellevue.edu:80/login?url=http://proquest.umi.com.ezproxy.bellevue.edu/pqdweb?did=1291137201&sid=1&Fmt=3&clientId=4683&RQT=309&VName=PQD

Case law developments. (2009, Nov/Dec).  Mental and Physical Disability Law Reporter, 33(6), 901-1058. Retrieved from http://ezproxy.bellevue.edu:80/login?url=http://proquest.umi.com.ezproxy.bellevue.edu/pqdweb?did=1983868541&sid=1&Fmt=3&clientId=4683&RQT=309&VName=PQD

Haggard-Grann, U. (2007, Summer). Assessing violence risk: A review and clinical recommendations. Journal of Counseling and Development : JCD, 85(3), 294-303. Retrieved from http://ezproxy.bellevue.edu:80/login?url=http://proquest.umi.com.ezproxy.bellevue.edu/pqdweb?did=1296984771&sid=1&Fmt=4&clientId=4683&RQT=309&VName=PQD

Hanson, R. K. (2009, Aug). The psychological assessment of risk for crime and violence. Canadian Psychology, 50(3), 172-183. Retrieved from http://ezproxy.bellevue.edu:80/login?url=http://proquest.umi.com.ezproxy.bellevue.edu/pqdweb?did=2003028881&sid=1&Fmt=4&clientId=4683&RQT=309&VName=PQD

King, C. A., & Kramer, A. C. (2008, Oct). Intervention research with youths at elevated risk for suicide: Meeting the ethical and regulatory challenges of informed consent and assent. Suicide & Life – Threatening Behavior, 38(5), 486-498. Retrieved from http://ezproxy.bellevue.edu:80/login?url=http://proquest.umi.com.ezproxy.bellevue.edu/pqdweb?did=1598147731&sid=1&Fmt=3&clientId=4683&RQT=309&VName=PQD

Myer, R. A., & Casile, W. J. (2010, Spring). Threats of violence in the workplace. Organization Development Journal, 28(1), 57-73. Retrieved from http://ezproxy.bellevue.edu:80/login?url=http://proquest.umi.com.ezproxy.bellevue.edu/pqdweb?did=1979164171&sid=3&Fmt=4&clientId=4683&RQT=309&VName=PQD

Norko, M. A., & Baranoski, M. V. (2008, Feb). The prediction of violence; Detection of dangerousness. Brief Treatment and Crisis Intervention, 8(1), 73-92. Retrieved from http://proquest.umi.com.ezproxy.bellevue.edu/pqdweb?index=16&did=1436942351&SrchMode=1&sid=1&Fmt=6&VInst=PROD&VType=PQD&RQT=309&VName=PQD&TS=1271696650&clientId=4683

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About Kent Brooks

try-therapy.com is a group of helping professionals collaborating to bring you information about mental health, counseling, and therapy! We provide therapy and mental health services throughout the entire state of Nebraska via a hybrid delivery system. You choose the solution that is right for you - in person, online, or a combination of both! I WORK ON A SLIDING SCALE!! If you do not have insurance, ask me for more info!

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